University of St. Thomas Law Journal
Volume 10
Issue 2 Fall 2012
Article 7
2012
It's Not a Game Anymore, Or Is It?: Virtual Worlds,
Virtual Lives, and the Modern (Mis)Statement of
the Virtual Law Imperative
Marc Andrew Spooner
Bluebook Citation
Marc Andrew Spooner, Comment, It's Not a Game Anymore, Or Is It?: Virtual Worlds, Virtual Lives, and the Modern (Mis)Statement of
the Virtual Law Imperative, 10 U. St. Thomas L.J. 533 (2012).
This Comment is brought to you for free and open access by UST Research Online and the University of St. Thomas Law Journal. For more
information, please contact [email protected].
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COMMENT
IT’S NOT A GAME ANYMORE, OR IS IT?:
VIRTUAL WORLDS, VIRTUAL LIVES,
AND THE MODERN
(MIS)STATEMENT OF THE VIRTUAL
LAW IMPERATIVE
MARC ANDREW SPOONER*
INTRODUCTION
The concept of virtual reality is commonplace in the contemporary
world. Yet those who are depicted in fiction as a generation of street-smart
cyberpunks have in reality cut their mohawks into comb-overs and tossed
their wallet chains. The modern iteration of the tech-savvy cybercitizen
wears a mauve pantsuit to work. She maintains a real-life job at a mid-sized
business, a corporate law office, or a medical institution. She listens to hip,
instrumental rock-and-roll rather than industrial electronica. To date, nobody plugs in to a worldwide computer network hosting millions of individuals in a future-chic, virtual world with a sort of corporeal interface, but
some do so with a keyboard and a mouse. Every day millions of people
deploy digital representations of themselves in a space that, in many cases,
can closely resemble the real-world. From everyday social networking web* Marc Andrew Spooner, J.D., graduated from the University of St. Thomas School of Law
where he served as the Editor-in-Chief of the UST Law Journal and enjoyed composing prolix
written correspondence to an astute and tolerant staff, among other things. The persons who encouraged the full execution of this article are myriad, but the author would like to express a unique
personal gratitude to the legendary Professor Stephen J. Cribari, without whose enthusiasm this
article may not have been conceived; to Jason S. Raether, who has indulged innumerable conversations on the topic over the last several years; to the USTLJ staff for its boundless patience and
tireless work; and to Ignatius J. Reilly, a capricious muse if not much more: “The grandeur of my
physique, the complexity of my worldview, the decency and taste implicit in my carriage, the
grace with which I function in the mire of today’s world—all of these at once confuse and astound
Clyde [the average internet user]. Now he has relegated me to working in the French Quarter [a
virtual world], an area which houses every vice that man has ever conceived in his wildest aberrations, including, I would imagine, several modern variants made possible through the wonders of
science.” JON KENNEDY TOOLE, A CONFEDERACY OF DUNCES 195 (1980).
533
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sites1 to fully immersive, three-dimensional galaxies,2 the quality of likeness between the user and the avatar is a growing constant in virtual worlds.
But so is the quality of measured unlikeness.
Within—or outside of—these virtual spaces, users can chat, share photographs, and tell stories; they can trade real money for virtual assets that
many regard as highly as some of their real-life physical treasures. And as
our technological capacity advances, so does the level of realism we can
reproduce. In the future one might leave work and run a virtual alpine skiing simulation complete with sensory stimulation and hyperreal imagery;
one might run a profitable real estate business; one might become a judge
on a virtual bench and preside over virtual trials for violations of a unique
virtual code of law; one might vote in a presidential election twice every
four years—once in the real-world, once in a virtual world. Indeed, people
already do such things. And many believe that virtual worlds have become
such a significant part of the actual world that they should be treated similarly. Users contend that their avatars have rights and that virtual worlds
should import real-world laws as a means to control the threat of virtual
crime and to ensure the consistency of their highly-prized, virtual lives.
This Comment argues that they are wrong.
The first section briefly addresses the history and nature of virtual
worlds and provides a context for the discussion of modern user interaction
with them. The second section offers an overview of virtual worlds today,
discusses the avatar as an object of unique user interest, and delves into the
underlying motivations driving users to engage others in virtual worlds.
Section two further examines the underlying problem of the user-developer
relationship as not just a power differential, but as a series of necessary
growing pains felt by parties to an internecine struggle bound by the fundamental—yet diametrically opposed—elements of user content creation and
underlying code. The third section examines the entirety of virtual law as
merely an extension of its most prolific invocation of real law: property
interests. Finally, the fourth section evaluates the state of one advanced virtual marketplace—that of the virtual world Second Life—and contemplates
the viability of establishing free-standing virtual property rights as a prerequisite to the creation of a more suffusive virtual legal regime. Section four
contemplates the prevalence and importance of property rights to virtual
claimants, to the user base as a whole, and to the virtual world developer.
Furthermore, it considers whether such a development is actually necessary
within the scope of common user claims.
1. See FACEBOOK, http://www.facebook.com (last visited Oct. 21, 2012); MYSPACE, http://
www.myspace.com (last visited Oct. 21, 2012); LINKEDIN, http://www.linkedin.com (last visited
Oct. 21, 2012).
2. See Ultima Online (Electronic Arts 1997); STAR WARS GALAXIES (LucasArts Entertainment 2003); WORLD OF WARCRAFT (Blizzard Entertainment 2004).
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The Comment concludes that, put simply, the need for law specific to
virtual worlds is overstated and the rationale therefore unsound. Barring
isolated, necessary instances of congressional legislation targeting specific
and objectively harmful online behavior,3 the law should not expand its
reach into virtual worlds beyond that which is patently necessary. The development of virtual law or a virtual rights regime is largely unnecessary in
the context of everyday virtual world use. More importantly, however, virtual law would undermine a majority of users’ needs by limiting the capacity of game developers to respond effectively to the user communities they
serve. In the context of what “rights” are at stake, there is no clear benefit to
injecting such protections into a realm that in many ways signifies an escape from the obligations that derive therefrom. Existing law is competent
to protect both the real and virtual interests of users who choose to find
ways to let their virtual and real lives intersect. When law or contract falls
short, the courts have not been hesitant to define the duties incumbent on
both virtual world users and virtual world developers. It is reasonably clear,
however, that they are unwilling to tell the parties how they must play.
Though some people do not treat it as such, it is just a game, after all.
I. A BRIEF HISTORY
Here was this display that could do all sorts of good things! So
we started talking about it, figuring what would be interesting
displays. We decided that probably you could make a two-Dimensional maneuvering sort of thing, and decided that naturally the
obvious thing to do was spaceships.
Steve Russell, creator of Spacewar4
Following the advent of network computing in the late 1960s, an enthusiastic group of game developers started the trend of remote multiuser
interfacing—the foundation of what we know today as online gaming.5 Although people had been engaging in adversarial gameplay for centuries
through board games such as chess, the fact that players could do so in real
time over great distance was entirely new.
The first of the truly multiplayer virtual worlds was called MUD—
short for Multi-User Dungeon. It was an adventure game involving fantasy
elements and user-driven combat. Users followed a second person, textbased narrative that described each location and any items or persons that
were there.6 The user navigated the game by typing commands such as
3. The exploitation of minors (under 13), for example, was addressed by the Child Online
Privacy Protection Act (“COPPA”), 15 U.S.C. §§ 6501–06 (1998).
4. Stewart Brand, Spacewar: Fanatic Life and Symbolic Death Among the Computer Bums,
ROLLING STONE, Dec. 7, 1972, at 50, 50–58, available at http://www.wheels.org/space-war/stone/
rolling_stone.html (quoting Steve Russell, creator of Spacewar).
5. GREG LASTOWKA, VIRTUAL JUSTICE: THE NEW LAW OF ONLINE WORLDS 37 (2010).
6. Id. at 39.
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“get,” “go,” or “kill,” and the narrative described the consequences of each
command.7 The platform—or the design of the game itself—was simple to
understand, easy to design, and rapidly garnered popular appeal among
users.
Text games such as MUD set the stage for the “cambrian explosion” of
graphical worlds during the early proliferation of the internet.8 Though the
original Multi-User Dungeon (like most games at the time) was an adventure game, networked gameplay took a decidedly social bent as the user
base diversified. MUDs touting names such as TinyMUD9 and
LambdaMOO10 shed the fantasy trope and the goal- or combat-oriented
gameplay—people started logging on just to hang out.11
Habitat, a game created by Lucasfilm in the 1980s, thrust the social
virtual world into the modern era. The key development was the graphical
user interface. The on-screen agent, referred to as an “avatar,” was a
cartoonish figure that the user navigated through a series of single-screen
regions.12 The user manipulated her avatar in a point-and-click fashion using a joystick controller; she spoke to other avatars through on-screen text
balloons; she regarded the world and her binary-self-incarnate not as a story
to be read but as a full-color motion picture.13
The Habitat experience was initially formulated as a series of traditional, goal-oriented mini-games. But these often required a considerably
larger amount of effort to construct than the community spent completing
them. To wit, early in the game’s history the developers endeavored to create an involved treasure hunt, which required hours of design, days of coordination, and extensive programming to implement. It was solved in a mere
eight hours by a user who stumbled across the key clue in the first fifteen
minutes.14 This and other similar creations were community-wide, collabo7. Id. at 38–39.
8. Bruce Damer, Meeting in the Ether: A Brief History of Virtual Worlds as a Medium for
User-Created Events, 1 J. VIRTUAL WORLDS RES., no. 1, July 2008, at 1–2, http://journals.tdl.org/
jvwr/article/view/285/239; TOM BOELLSTORFF, COMING OF AGE IN SECOND LIFE: AN ANTHROPOLOGIST EXPLORES THE VIRTUALLY HUMAN 51 (2008).
9. The acronym MUD, while at first representative of the game itself, became a moniker
used for the class of text-based games that evolved as their use became more widespread and users
developed variants to accommodate differing styles of play. Other related derivatives included
MUSHes, MOOs, and MUCKs. See LASTOWKA, supra note 5, at 40–41. One iteration, ElseMOO,
was modeled after a suburban Minnesota town; there were no objective goals beyond the recreation of a moderate and “genteel” community. Id.
10. Id.
11. BOELLSTORFF, supra note 8, at 50–52.
12. Damer, supra note 8, at 4.
13. See Chip Morningstar & F. Randall Farmer, The Lessons of Lucasfilm’s Habitat, 1 J.
VIRTUAL WORLDS RES., no. 1, July 2008, at 1, 3, http://journals.tdl.org/jvwr/article/view/287/241.
Actual usage figures amounted to around several thousand concurrent users. LASTOWKA, supra
note 5, at 44.
14. See Morningstar & Farmer, supra note 13, at 12 (explaining that the Habitat developers
thought the first goal-directed event would occupy players for days).
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rative activities, which meant that once the puzzle was solved by one user,
it was solved for all users. The developers simply could not create content
fast enough to satisfy the players’ demand, which led them to abandon a
top-down approach to content creation and to “let the players themselves
drive the direction of the design.”15 The abandonment of the creator-consumer diametric leveled—if only symbolically—the asymmetric relationship between the developers and the users. In effect, the developers
voluntarily relinquished control over what had historically been outside the
province of the ordinary user. Consequently, users were encouraged to design; so too were they encouraged to own.
The combination of a graphical self-representation and an immersive,
quasi-real environment involving, inter alia, elements of community, politics, and entertainment afforded users a greater connection to the virtual
world, the community therein, and ultimately to their personal avatar. Demonstrative language norms developed such as the use of “you” and “I” in
reference to an avatar rather than the person controlling it.16 A growing user
base and the community-based content development model fostered a complex society to which users—having recently adopted a synonymic relationship with their avatars—became increasingly devoted.
In its final form, Habitat featured a virtual economy and a community
with myriad aspirations. Social groups, churches, and user-created minigames were developed;17 avatars held in-world debates over questions such
as the legality of virtual murder;18 and the developers actively nurtured the
community by engaging the users and responding with new facets to the
game, new rules, or new capabilities as needed.19 This led to interesting
results, such as the election of a town sheriff—a well-respected, though
ambiguously defined member of the society who was to be programmatically endowed with powers that users had chosen by a referendum.20 Yet
beyond the spectacle of dynamic social evolution within a fledgling community, something else had transpired: the game, it would seem, had ceased
to be just a game.
During a technology conference nearly a decade after the rise and fall
of the Habitat world, the Lucasfilm developers cynically reflected on the
experience: “a special circle of living Hell awaits the implementors [sic] of
systems involving that most important category of autonomous computational agents of all, groups of interacting human beings.”21 Appropriately,
Habitat marked the genesis of the present trend in social virtual worlds:
15.
16.
17.
18.
19.
20.
decided
21.
Id.
See LASTOWKA, supra note 5, at 45–46.
Id. at 43–44.
Morningstar & Farmer, supra note 13, at 13.
See id. at 14 (noting that, initially, “[t]he Sheriff was nothing but a figurehead.”).
Id. at 13. The pilot program ended before the Sheriff could be imbued with those powers
upon by the community. Id.
Morningstar & Farmer, supra note 13, at 10.
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users are granted varying degrees of control over a persistent environment
and hence over the experiences of their peers. Although computer technology would change in ways the Lucasfilm pioneers could not imagine over
the decades that followed the technology conference, their observations
about human interaction in the virtual world were eerily prescient.
Today, that trend has expanded considerably: now an estimated twenty
to thirty million individuals worldwide engage virtual communities—
whether based on role play, combat, or community—an average of twentytwo hours each week.22 The popularity of virtual worlds has enticed politicians to invest in virtual campaigns,23 has produced virtual land barons with
virtual assets worth real cash millions,24 and has provided legal professionals (including Judge Richard Posner of the 7th Circuit) a place to reach out
to the digital agents of real-life clients and colleagues.25 These examples are
merely a few of the many ways the real-world has become increasingly
invested in the virtual worlds.
II. WHAT
THE
HELL
IS A
VIRTUAL WORLD?
Behold! Human beings living in an underground den, which has a
mouth open toward the light and reaching all along the den; here
they have been from their childhood, and have their legs and
necks chained so that they cannot move, and can only see before
them . . . behind them a fire is blazing at a distance . . . and you
will see, if you look, a low wall . . . like the screen which marionette-players have in front of them, over which they show the puppets . . . . They see only their own shadows, or the shadows of one
another, which the fire throws on the opposite wall of the cave.
Plato’s Allegory of the Cave26
The popularized concept of the virtual world as we know it today has
its genesis in Neal Stephenson’s science fiction novel, Snow Crash.27 In the
book, the metaverse is the virtual frontier of the modern internet—a threedimensional immersive world; a second existence for humanity; a respite
from what was left of a corrupt, corporate, and fragmented world. It is the
fictional successor to the worldwide computer network many of us use on a
22. Jack M. Balkin & Beth Simone Noveck, Introduction, in THE STATE OF PLAY: LAW,
GAMES, AND VIRTUAL WORLDS 3 (Jack M. Balkin & Beth Simone Noveck eds., 2006).
23. See generally Annabel Jane Wharton, Shaping the ‘Public Sphere’ in Second Life: Architectures of the 2008 Presidential, 2 J. VIRTUAL WORLDS RES., no. 2, Aug. 2009, at 1, 1, https://
journals.tdl.org/jvwr/article/view/411/491 (discussing the use of Second Life as campaign mechanisms for both the Republican and Democratic political parties in the 2008 presidential election).
24. Jessica Bennett, Why Millions Are Living Virtual Lives Online, NEWSWEEK, July 29,
2007, http://www.thedailybeast.com/newsweek/2007/07/29/alternate-universe.html.
25. See Terry Carter, Stephanie Francis Ward & Rachel M. Zahorsky, Legal Rebels: Riding
Solo Homegrown Virtual Practice, 96 A.B.A. J. 38, 38 (2010); John Bringardner, Law Firms
Open Virtual Offices for Offline Profit, EDISCOVERY: TECH. & L., Feb. 2007, at 5.
26. PLATO, THE REPUBLIC 253–54 (B. Jowett trans., Random House 1960).
27. NEAL STEPHENSON, SNOW CRASH (1992).
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daily basis. Within the metaverse, humans interact with each other via avatars that they connect to through public or private computer terminals. Social status is demonstrated by technical acumen28 and the appearance of
sophistication. Although the world Stephenson envisioned was advanced far
beyond our present technological capacity, the ideal has, regardless, taken
hold.
But what exactly is a virtual world? Familiars might reference modern
cinema (blockbuster hits such as The Matrix29) or video games. These comparisons often impart to the users an element of negative social stigma.
Proponents of virtual world legitimacy, on the other hand, often quote
Auden:
[M]an is a history and culture making creature, who by his own
efforts has been able to change himself after his biological evolution was complete. Each of us, therefore, has acquired what we
call a ‘second nature’, created by the particular society and culture into which we happen to have been born.30
A. Virtual Worlds Today
To paint in broad strokes, virtual worlds may generally be defined as
“a place described by words or projected through pictures which create a
space in the imagination, real enough that you can feel you are inside of
it.”31 Whether Plato’s cave32 or Shakespeare’s Othello, whether words or
text, an element of the virtual is imaginative freedom—“[f]reedom to do, to
be, to realize.”33 Adapted to suit the evolution of virtual worlds beyond
those created in fiction and folklore, the modern iteration constitutes a “synchronous, persistent network of people, represented as avatars, [and] facilitated by networked computers.”34 In other words, a virtual world is an
28. That is, one’s raw ability to control an avatar in a realistic manner, or to interact with the
virtual world itself by creating, manipulating, or defying its core structural elements. In a sense,
such reverence is not unlike that which we attribute to professional actors, athletes, or writers. See
id. at 61.
29. THE MATRIX (Warner Bros. Pictures in association with Village Roadshow Pictures,
Groucho II Film Partnership, and Silver Pictures 1999).
30. WYSTAN HUGH AUDEN, Words and the Word, in SECONDARY WORLDS: ESSAYS BY W.H.
AUDEN 119 (1968).
31. Damer, supra note 8, at 2; see also Norberto Nuno Gomes de Andrade, Striking a Balance Between Property and Personality: The Case of the Avatars, 1 J.VIRTUAL WORLDS RES., no.
3, Feb. 2009, at 1, 12, http://journals.tdl.org/jvwr/index.php/jvwr/article/view/362/423 (“[V]irtual
worlds can be technically defined as shared, persistent, dynamic and representational computergenerated environments that allow players to interact with each other and engage in a wide range
of activities through the control and manipulation of a given character/interface - the avatar.”).
32. PLATO, supra note 26, at 253–54.
33. Richard A. Bartle, Virtual Worldliness, in THE STATE OF PLAY: LAW, GAMES, AND VIRTUAL WORLDS, supra note 22, at 33.
34. Jeremiah Spence, Demographics of Virtual Worlds, 1 J. VIRTUAL WORLDS RES., no. 2,
Nov. 2008, at 1, 3, http://journals.tdl.org/jvwr/article/view/360/272 (quoting Mark W. Bell, To-
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independent and persistent space in which users represented by graphical or
textual surrogates interact in real time.
There are currently hundreds of virtual worlds encompassing a broad
variety of genres and serving a highly diverse user base. Some virtual
worlds are geared only toward children, some toward adults; there are
worlds where one can play the role of a human warrior entrenched in a
centuries-old war against orcs35 or aliens;36 some host people living as professional farmers,37 kings,38 and fashionistas;39 some boast users numbering
in the hundreds, some in the millions. Despite mainstream society’s
penchant for placative descriptors,40 virtual worlds do have many realworld applications in professional fields such as education, business, and
health.41 As the internet grows in popularity and accessibility, the number
and diversity of these worlds continues to increase. Two of the most popular contemporary virtual worlds, World of Warcraft and Second Life, occupy polar ends of the subject matter spectrum; the former falling within
the class of manifestly goal-oriented worlds, and the latter representing socially-oriented worlds devoid of any specific architecture for objective
progress.
In World of Warcraft the user plays the role of a warrior tracing a
common theme of battle against other users and computer-generated monsters. The goal is simple: gain experience, amass gold, collect powerful instruments of warfare, and meet a series of predefined objectives. The user
wins upon satisfaction of these objectives. ‘Beating the game’ does not,
wards a Definition of “Virtual Worlds”, 1 J. VIRTUAL WORLDS RES., no. 1, Nov. 2008 at 1, 2,
http://journals.tdl.org/jvwr/index.php/jvwr/article/view/283/237).
35. WORLD OF WARCRAFT, supra note 2.
36. ALIENS VERSUS PREDATOR (Fox Interactive 1999).
37. WORLD OF WARCRAFT, supra note 2.
38. ULTIMA ONLINE, supra note 2; ENTROPIA UNIVERSE (MindArk 2003).
39. See Stéphane Kieger, An Exploration of Entrepreneurship in Massively Multiplayer Online Role-Playing Games: Second Life and Entropia Universe, 2 J. VIRTUAL WORLDS RES., no. 4,
Feb. 2010, at 10, 14, http://journals.tdl.org/jvwr/index.php/jvwr/article/view/643/623. Kieger’s paper details the author’s thorough empirical research into the viability of virtual world entrepreneurship in Second Life and Entropia Universe, focusing on the for-profit ventures of a select
group of users operating in each virtual world. Although the author sidesteps the rather important
issue of overall economic strength with a few curt allusions to “expansion” and “growth,” he
concludes that three predicates to entrepreneurial viability are present: (1) willing investors, (2)
new technology presenting new revenue opportunities, and (3) a growing market that is wellunderstood by the entrepreneurs. Id. at 21.
40. See Nick Yee, The Demographics, Motivations, and Derived Experiences of Users of
Massively Multi-User Online Graphical Environments, 15 PRESENCE: TELEOPERATORS & VIRTUAL
ENV’T, no. 3, 309, 317 (2006) (“[S]cenic chat room[s] with a variety of interactive tasks.”).
41. See, e.g., David Kurt Herold, Virtual Education: Teaching Media Studies in Second Life,
2 J. VIRTUAL WORLDS RES., no. 1, Apr. 2009, at 1, 9, http://journals.tdl.org/jvwr/index.php/jvwr/
article/view/380/454 (discussing the value of virtual worlds in education); see also Maria ToroTroconis & Maged N. Kamel Boulos, Musings on the State of ‘3-D Virtual Worlds for Health and
Healthcare’ in 2009, 2 J. VIRTUAL WORLDS RES., no. 2, Aug. 2009, at 1, 10, http://journals.tdl.
org/jvwr/index.php/jvwr/article/view/629 (discussing the present and future role of virtual worlds
in education and healthcare).
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however, signify a terminus. Instead, the user simply starts over with the
spoils collected on the battlefield for use against tougher, better-equipped
foes. The primary objectives remain consistent, but the purpose of multiple
victories becomes self-improvement rather than goal achievement.
Second Life, on the other hand, cannot be so easily defined. The platform imparts a staggering level of freedom on the user, and there are no
explicit directives as to how one must advance within the game. Indeed,
there are no ‘levels’ or goals to be found, just a bazaar of user-generated
trinkets and digital real property, some of it like-real and some of it unreal.42 As was the case with Habitat, Linden Lab purposefully entreats the
user to create and design such that her own contributions to the virtual
world shape not only her unique experience but that of those around her as
well. This approach is consistent with that which early virtual world developers used to resolve the experiential impediment that the asymmetric userdeveloper relationship imposes on purely social worlds: namely, a creative
capacity incompetent to satisfy a sizeable user population.
Though the two platforms share many key elements, such as persistence and immediacy, the free-form nature of social worlds essentially replaces concrete objectives with a freedom to design. As such, the user is
vested with nearly-unlimited control over the way she relates to the world.
The vast majority of users devote their creative efforts toward the task of
customizing their representative agent; or, in other words, designing a fashionable avatar. Because avatars, too, face real-world prejudice.43
B. The Social Avatar
The evolution of the user avatar from an agent into a surrogate is an
important cornerstone in the contemporary movement for the expansion of
virtual rights. A user’s willingness to identify with her virtual world persona highlights an important and fundamental motivation to demand, for
example, a virtual property rights regime.
The emergence of the avatar into mainstream use was widely tied to
the success of the computer entertainment industry.44 An avatar was initially just a user’s representative image—“you” were the Mario character
on the television screen or the video pong paddle. Physical empathy toward
even rudimentary avatars is evident in the way people sway, duck, lean, and
even panic while playing a game. When customization possibilities grew in
complexity, the avatar became more than just an agent, thus “enabling . . .
consumers to playfully engage in symbolic avatar creation and experience
42. “Sandbox” is a colloquial term used to describe an in-game design studio with which
users can create persistent objects such as clothing or home decorum, that become semi-permanent based on the users’ influence.
43. BOELLSTORFF, supra note 8, at 130 (noting that avatars, like humans, are judged by their
appearance).
44. See LASTOWKA, supra note 5, at 44.
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different bodily selves.”45 Therefore they developed “proprietary feeling[s]” toward their avatars due to users experiencing symbolic disembodiment. It is a freedom to be who you want to be and do things you couldn’t
otherwise do in reality.46
The word “avatar,” derived from Sanskrit,47 generally refers to the deliberate descent of a deity—typically the Hindu god Vishnu—from heaven
to earth but translates literally to “appearance” or “manifestation.”48 The
word connotes a spiritual transmission from the heavens (the virtual) to the
earth (the actual): the deity becomes real. Yet in its common contemporary
usage the transmission occurs in reverse, from the actual to the virtual. The
user becomes unreal.49 Understandably, the simultaneous deification and
abstraction of the user does have its allure. Indeed, the transcendence from
user to avatar—the lines of binary code that signify the user/avatar presence
in a virtual world—is eerily similar to the Hindu corollary.50 Through their
avatars, users of the virtual world can teleport, fly, communicate telepathically, manifest objects, and transform (among other things). A slender and
satin-haired female one minute, a gigantic violet-colored squirrel the next.51
Despite a seemingly limitless virtual existence, users exhibit a variety
of socially entrenched real-world behavioral norms. For example, avatars
stand close to one another when they “talk” despite the fact that physical
proximity is unnecessary to affect a conversation.52 Homes in virtual worlds
have kitchens and bathrooms even though avatars do not eat and hence
cannot digest or excrete. There are taverns and night clubs that serve—and
charge money for—alcoholic beverages. Indeed, real-world society informs
many aspects of virtual society, but it cannot itself explain virtual society.
The real is merely a reference point from which virtual world users develop
unique identities and experiences. It is an existence shaped as much by the
spaces they come to inhabit as it is by the places they escape.53
45. Handan Vicdan & Ebru Ulusoy, Symbolic and Experiential Consumption of Body in Virtual Worlds: From (Dis)Embodiment to Sysmembodiment, 1 J. VIRTUAL WORLDS RES., no. 2,
Nov. 2008, at 1, 10, http://journals.tdl.org/jvwr/article/download/347/257.
46. Id. at 15; see BOELLSTORFF, supra note 8, at 129 (“What happens to it happens to them.
What touches it, they feel . . . .”) (quoting MYRON W. KRUEGER, ARTIFICIAL REALITY 127–28
(1983)).
47. Avatara (Sanskrit) or
(Devangari). See FREDA MATCHETT, KRSNA, LORD OR
AVATARA?: THE RELATIONSHIP BETWEEN KRSNA AND VISNU 4 (2001), for further reading on the
origins of the word and its significance in Hindu mythology.
48. MATCHETT, supra note 47, at 4; BOELLSTORFF, supra note 8, at 128–29.
49. See BOELLSTORFF, supra note 8, at 128.
50. See id.
51. See Delia Dumitrica & Georgia Gaden, Knee-High Boots and Six-Pack Abs:
Autoethnographic Reflections on Gender and Technology in Second Life, 1 J. VIRTUAL WORLDS
RES., no. 3, Feb. 2009, at 4, 10, https://journals.tdl.org/jvwr/article/view/323/422 (discussing gender bending in Second Life).
52. LASTOWKA, supra note 5, at 45.
53. See BOELLSTORFF, supra note 8, at 63. But, for an inapposite viewpoint, see Lori Landay,
Having But Not Holding: Consumerism & Commodification in Second Life, 1 J. VIRTUAL WORLDS
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While in the real-world, the body is a fundamental mechanism of communication with others. Lacking any corresponding essential function, the
body in the virtual world becomes an end in itself. And it is infinitely malleable. The act of purchasing “skins”54 or collecting an array of flamboyant
hairstyles are examples of the
immersive experience of constructing and reconstructing one’s
selves, therefore indicating the experiencing of the body for the
sake of the body, and less of a purposeful signification of the
body to convey a meaning or an impression to others. In other
words, the role of the body is transformed from a means to communicate or signify impression to an end in that the body itself
becomes the experience.55
User control over the appearance of an avatar imparts the ability to
craft an ideal self. Users lavish great amounts of time and money into developing one—if not multiple—virtual identities.56 The effective level of
control the user has over the avatar appearance leaves little room for chance
physical characteristics. Still, people have a tendency to create avatars that
are similar in appearance to their real-life selves.57 They often, however,
omit or replace self-perceived physical deficiencies.58 These upgrades are
generally minimal enough for a person to maintain self-reflexivity, but significant enough to imbue a sense of self-confidence: a frame just a little
taller, a form just a little slimmer, arms just a little stronger, eyes just a little
bluer.59
Some users diverge significantly from their true appearance and design
avatars that fit with a personal fantasy interest: gender bending, medieval
role playing, and dressing up in animal skin all typify relatively common
RES., no. 2, Nov. 2008, at 1, 2, http://journals.tdl.org/jvwr/article/viewFile/355/265. In a somewhat biased article, Landay notes that metaphor drives the creative experience, and suggests that
users’ real-world interests will inform in-world behavior to a greater degree than Boellstorff suggests. Id. at 3.
54. “Skins” are essentially new physical appearances available for purchase in some virtual
worlds. A skin might change only the physical appearance of the body itself, or include clothing
or other personal effects such as weapons, or a hat.
55. Vicdan & Ulusoy, supra note 45, at 13.
56. See BOELLSTORFF, supra note 8, at 129.
57. See id. at 129–30.
58. Id.
59. See Vicdan & Ulusoy, supra note 45, at 13–15. “With [Second Life], presentation of the
self is enhanced by immersion into SL experiences, which take the form of symbolic construction
and reconstruction of bodily selves through the semiotic scheme of the virtual worlds. Consumers
are enabled to playfully immerse into life experiences and experiment with these lived moments
through their multiple avatars.” Id. at 15. See also Enrique P. Becerra & Mary Ann Stutts, Ugly
Duckling by Day, Supermodel by Night: The Influence of Body Image on the Use of Virtual
Worlds, 1 J. VIRTUAL WORLDS RES., no. 2, Nov. 2008, at 1, 5–6, 12–13, http://journals.tdl.org/
jvwr/article/view/346/254 (concluding that an inverse relationship exists between body image and
the desire to become somebody else, which in turn is positively correlated with a propensity to use
virtual worlds).
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virtual pastimes.60 Attendant to a user’s mastery of the art of avatar manipulation and interaction follows a presumption that the user has developed
both an attachment to the virtual world and her agent in that world. It stands
to reason that at this point the once-divergent selves begin to overlap, and
the user begins to identify not just with, but as the avatar she has created.
And such as it is in the real-world, meaningful identification with an item of
personal significance fosters sentiments such as a sense of entitlement, a
desire for respect, and a need for protection.
Ralph Koster, a renowned virtual world designer, theorized the basis
for these basic needs in his oft-cited manuscript, A Declaration of the
Rights of Avatars,61 which was written more than a decade ago. The text
itself was based on sequences from the Bill of Rights and the Declaration of
the Rights of Man, thus implying an indelible emotional connection between the human and the avatar.62 Interestingly, however, Koster specifically vests the protection of rights in the avatar as a separate entity from,
rather than an extension of, the user: among the foremost of these is “the
right to be treated as people and not as disembodied, meaningless, soulless
puppets. Inherent in this right are therefore the natural and inalienable rights
of man.”63 Although the document was more a thought exercise than a true
position statement, it has taken on significance amongst virtual world enthusiasts. And at the very least, it elucidates the potential depth of investment in their virtual manifestations.
C. Who Plays, and Why?
The allure of virtual worlds is as broad as the imagination of the user.
Social virtual worlds, being the most open ended, encompass most of the
benefits of other more genre-specific games. While a traditional objectiveoriented game will generally contain a storyline targeted toward a specific
user interest, a purely social world like Second Life offers the opportunity
to not only engage a broader community of users and a variety of activities,
but to do many of the same activities that typical games offer.64 All virtual
worlds, however, provide a visual social network in which users can engage
60. See Yee, supra note 40, at 311.
61. For a copy of the declaration, see RALPH KOSTER, A DECLARATION OF THE RIGHTS OF
AVATARS (2000), in PETER LUDLOW & MARK WALLACE, THE SECOND LIFE HERALD 269, 269–73
(2007).
62. See id.
63. Id. at 270.
64. In many social virtual worlds users are free to design and implement different kinds of
“mini games.” For instance, although Second Life is not a platform designed around the idea of
“killing” other users, this type of use has been created and used in a variety of settings. See Tjarda
Sixma, The Gorean Community in Second Life: Rules of Sexual Inspired Role-Play, 1 J. VIRTUAL
WORLDS RES., no. 3, Feb. 2009, at 3, 13, http://journals.tdl.org/jvwr/index.php/jvwr/article/view/
330/436 (discussing Gor, one of the most prolific roleplaying communities in Second Life, as an
example of a community with specific fighting rules and conditions that must be met in order to
record a “kill”).
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their friends, spouses, and families as well as contribute to the world by
creating permanent items for others to use.65 Whether the world involves
dancing at night clubs or sword fighting werewolves is immaterial in this
respect. Independent of any specific content, any virtual world can serve as
a meeting place for businesses or a getaway for romantic partners; it can be
used in rehabilitative health services or implemented in educational support
and alternative teacher education programs.66 What virtual worlds are not is
exclusive to any specific class of persons.
Those participating in virtual worlds hail from a wide variety of social
spheres and a diverse range of economic backgrounds.67 Half of all active
users are employed full-time; one quarter consists of full-time students; and
the other quarter constitutes part-time students, part-time employees, or unemployed persons.68 More than eighty percent of the user base for online
virtual worlds is male, the average user age is between twenty-six and
twenty-seven, and the average amount of time a user spends in-world is
over twenty hours each week.69
But what motivates users to spend half as much time in front of their
computer as the average person spends at a real-life job each week? Since
the early development of virtual worlds, researchers and developers have
observed four general categories of user-types characterized by specific
motivations to play: achievers, explorers, socializers, and killers.70
Achievers set out to accomplish goals and win the game; explorers test the
boundaries of the game environment and explore the world; socializers participate in different social groups and develop relationships with others; and
killers seek out ways to dominate other users.71 A recent study conducted
over three years and across a broad range of virtual worlds isolated user
motivations into five core categories: relationships, manipulation, immersion, escapism, and achievement.72
The study revealed a few particularly interesting (and at least as many
predictable) features of the virtual world culture. Relationships and social
intimacy ranked highest as a primary motivational factor among both male
65. See generally Paul R. Messinger, Eleni Stroulia, & Kelly Lyons, A Typology of Virtual
Worlds: Historical Overview and Future Directions, 1 J. VIRTUAL WORLDS RES., no. 1, July 2008,
at 1, http://journals.tdl.org/jvwr/article/view/291/245 (discussing how virtual worlds constitute a
growing and complex space).
66. The Journal of Virtual Worlds Research published two issues, entitled “Pedagogy, Education and Innovation in 3-D Virtual Worlds” and “3d Virtual Worlds for Health and Healthcare,”
that gave extensive treatment to the ongoing health and education innovations recently explored.
The issues are published in full at http://jvwresearch.org/ (hover over the “Past Issues” button at
the top of the page).
67. See Kieger, supra note 39, at 12–13.
68. See Yee, supra note 40, at 315–17 (discussing the demographics of virtual worlds).
69. See id. (providing additional information regarding the demographics of virtual worlds).
70. LASTOWKA, supra note 5, at 58.
71. Id. Colloquially, to ‘pwn.’
72. Yee, supra note 40, at 309.
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and female users. On the other hand, manipulation—a category encompassing activities such as the development of virtual chattels to sell in the virtual
world—was the least important motivational factor among the users studied. Interestingly, user age was found to be inversely proportional to the
user’s interest in manipulation.73 In other words, as a user grows older her
interest in manipulating the world declines. Though participation in virtual
worlds decreased in the higher age ranges, the study found a consistently
high degree of emotional investment among all users. In many cases, experiences and relationships occurring within a virtual world were at least as
important to users as those they maintained in real life.74
Similarly, for some users the prospect of tapping into a robust virtual
marketplace for profit is a strong motivation for participating in a virtual
world. Journalist Julian Dibbell, for instance, maintained a living-wagelevel income by playing the fantasy combat title, Ultima Online.75 Dibbell
collected weapons, armor, and other virtual valuables that he received during gameplay and sold them to other users on eBay.76 This formula is not
unique:77 there are many whose sole income is founded in virtual world
commerce and by a variety of means. Yet a closer examination of a representative virtual economy—that of Second Life—reveals that an income
interest is nowhere near the predominant motivation driving users to participate in the virtual marketplace.78 Rather, the majority of Second Life users
seek (exclusively in most cases) enhancements that enrich the virtual world
experience; for example, platform or avatar add-ons.79
D. Virtual Economies; Cold Hard Cash
Although not all virtual world providers sanction or facilitate the exchange of virtual assets for real money, the practice is widespread. As one
would imagine, virtual worlds with a legitimate market economy exhibit
many of the same features found in real-life marketplaces: wholesalers, spe73. Id. at 320.
74. Id. at 323–24.
75. Ultima Online is a fantasy combat simulation that predates World of Warcraft by more
than a decade. The principles underlying the game are similar, though the particular cast and lore
varies considerably.
76. See generally JULIAN DIBBELL, PLAY MONEY (2006) (illustrating how Dibbell quit his
day job and made millions trading virtual items). The conduct of selling virtual items is now
forbidden on eBay and other similar websites, and software companies whose user agreements
specifically forbid the sale of virtual items for monetary value have supported increasing enforcement of these prohibitions. See discussion infra Part III-3.
77. See generally Anthony Gilmore, China’s New Gold Farm, 2 J. VIRTUAL WORLDS RES.,
no. 4, Feb. 2010, at 3, http://journals.tdl.org/jvwr/index.php/jvwr/article/view/863/628 (providing
a brief report and photo essay that depicts one of the many gold farms operating in China).
78. See discussion infra Part IV-1; but see generally Kieger, supra note 39 (discussing entrepreneurial viability in virtual worlds and indirectly assuming that virtual world economies are
growing).
79. See discussion supra Part II-2.
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cialty outfits, personalized services, and the like. Similarly, sales activities
range from intermittent dabbling to full-time dealing; the subject commodities can be anything from virtual chattels to virtual property and more. Indeed, the sale of entire accounts as a quasi-prefab commodity is quite
common. World of Warcraft characters, for example, can be found online at
prices reaching into the thousands of dollars.80 These sorts of transactions
occur in social worlds as well, which suggests that such account purchases
are not valued solely on the objective advantage of better equipment or
refined skill sets.
The most common transaction between users is a typical gray market
(or black market) exchange. They are often facilitated by a third party such
as an auction website or a special-interest message board.81 Users browse
third-party listings in the same manner as one might peruse the classified
ads for a used toaster oven. When she selects an item she can usually initiate an electronic transfer of funds, after which the buyer and the seller meet
within the virtual world to affect the transfer of the merchandise. As previously noted, the sale of second-hand virtual chattels can be a lucrative business for those who are able to obtain sought-after items. Alternatively,
where a virtual economy is actively facilitated by a game developer, users
can actually set up an in-world storefront and run a highly organized sales
operation. Theoretically, the items for sale could be identical to those in the
preceding example, but the process is akin to a simple file transfer and thus
far less prone to exploitation.82
Of the virtual worlds that entice users with a cash-equivalent economy,
Second Life remains one of the most widely used. Linden Lab supports the
Second Life economy by providing an online monetary exchange. The
LindeX, as it is called, traded at a rate of approximately L$260 to one U.S.
dollar between 2009 and 2010.83 Entropy Universe, another popular platform of the science fiction genre, boasts a ten-to-one fixed exchange rate
80. This figure was retrieved on an account sales website, www.accountsdirect.com. The site
features listings of avatars from a large number of games and provides similar service guarantees
and technical support (complete with the photograph of an attractive female account representative) to other online retailers such as Amazon or Newegg.
81. See, e.g., GUILD BANK - WOW WORLD OF WARCRAFT ITEMS FOR SALE, http://www.
guild-bank.com (last visited Mar. 31, 2013).
82. The mechanics underlying the transfer of a virtual chattel often require the seller to drop
the item so that the buyer can pick it up. For the duration of time between the seller’s act of
dropping the item and the buyer’s act of picking it up a number of obvious risks are presented:
first, a third party may interrupt the exchange and “steal” the item; second, the buyer may disconnect from the virtual world, rendering the item vulnerable to passersby; and third, the seller may
simply reclaim the item and leave the game.
83. Nelson Linden, The Second Life Economy in Q4 2010, SECOND LIFE BLOG (Jan. 26,
2011, 12:30 PM), http://community.secondlife.com/t5/Featured-News/The-Second-Life-Economy-in-Q4-2010/ba-p/674618.
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between the in-world currency and U.S. dollars.84 To date, these and other
virtual economies have produced a millionaire land-baroness,85 a digitalpornography mogul,86 virtual-turned-real fashion designers,87 art critics,
and hundreds of other hobbyist-entrepreneurs looking to make a few dollars. Though genuine, such levels of success are uncommon; the average
peddler of virtual wares occupies the superlative middle-income class.
As a means to facilitate commerce and creativity, the Second Life interface88 offers a design “sandbox” (not unlike a package of Legos®) with
which users can build persistent content from a series of preset modules.89
Since the world’s conception, Linden Lab has actively publicized its intent
to vest users with intellectual property rights to the content they create.
These rights are largely identical to property rights existing in real items:
owners have the right to exclude, the right to manipulate or alter, the right
to prevent manipulation, the right to sell or transfer the property, and so
on.90 Thus a user can introduce the content she creates into the virtual marketplace as a sale for profit. Ultimately it is the fiscally minded user that
most benefits from the developer’s recognition of virtual property rights.
Judicial enforcement of these entitlements would, ostensibly, further that
particular interest as game developers possess only a limited capacity to
maintain and enforce the rights they purport to vest in the user.
Irrespective of the for-profit activity within a virtual world, however,
the purposeful maintenance of a legitimate connection to an external legal
economy invites the spectre of claims under law. The majority of the legal
claims that arise out of virtual world conduct involve the exchange or use of
virtual goods.91 Such claims currently have the most tenable connection to
the existing body of law and typically sound under one of three principal
legal theories: contract, property, or intellectual property. Contract claims
are common to most all virtual worlds in which goods are exchanged for
money, while property and intellectual property claims arise more often in
84. Oliver Chiang, Meet The Man Who Paid A Record $335,000 For Virtual Property,
FORBES BLOGS: SELECTSTART (Nov. 17, 2010, 8:00 PM), http://blogs.forbes.com/oliverchiang/
2010/11/17/meet-the-man-who-paid-a-record-335000-for-virtual-property/.
85. See Robert D. Hof, My Virtual Life, BUSINESSWEEK, Apr. 30, 2006, available at http://
www.businessweek.com/magazine/content/06_18/b3982001.htm; see also Kurt Hunt, This Land
Is Not Your Land: Second Life, CopyBot, and the Looming Question of Virtual Property Rights, 9
TEX. R. ENT. & SPORTS L. 141, 143 (2007) (describing how Anshe Chung, the first Second Life
land baroness, amassed one million U.S. dollars in virtual land assets).
86. See LASTOWKA, supra note 5, at 191.
87. See, e.g., Theodore C. Max, Trademarks in the Veldt: Do Virtual Lawyers Dream of
Electric Trademarks?, 101 TRADEMARK REP. 282, 288 (2011).
88. Or, in other words, the program users execute on their personal computer in order to
access the virtual world.
89. See Philip Stoup, Note, The Development and Failure of Social Norms in Second Life, 58
DUKE L.J. 311, 315–16 (2008).
90. Id. at 318–19.
91. See infra Parts III-3–5.
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the context of official economies and generally test the extent to which such
interests have been—or can be—vested in the user.
The present protection regime has, in many ways, failed to protect the
rights awarded to users of virtual worlds. Existing Digital Rights Management (“DRM”) protections that users can apply to their creations are easily
circumvented,92 and the promises of virtual world providers to protect those
creators against violation of intellectual property rights and trademark violations—as will be discussed—have gone largely unaddressed. User interest
persists, however, and the potential for profit has attracted more than game
developers and computer enthusiasts.
III. LEGAL ISSUES & REAL VIRTUAL WORLD RESPONSES
I suppose it is tempting, if the only tool you have is a hammer, to
treat everything as if it were a nail.
Abraham Maslow93
A large number of virtual worlds appeared between Habitat and the
present, and the same technological advances—graphics and bandwidth—
that facilitated user investment in that particular world, continue to advance.
The result has been an increase in independence and a decrease in overt,
“centralized control” as the Habitat creators predicted.94 Second Life is
unique among virtual worlds insofar as it purports to grant users ownership
in virtual chattels.95 Users are encouraged to create and to buy everything
from wardrobe accoutrements to user scripts,96 from hairstyles to parcels of
land. From the early stages of Second Life development, Linden Research
CEO Philip Rosedale couched his discussion of virtual land in terms of
private ownership,97 and Linden Lab issued press releases proclaiming the
grant of intellectual property rights to users.98 Yet in many ways this was an
empty promise. In Second Life, and in other virtual worlds, the protection
of rights that developers conferred to users of their virtual worlds has been
far from a priority.
92. Hunt, supra note 85, at 147–48.
93. ABRAHAM H. MASLOW, THE PSYCHOLOGY OF SCIENCE: A RECONNAISSANCE 15–16 (First
Gateway ed. 1969).
94. See Morningstar & Farmer, supra note 13, at 18 (“We advocate an agoric, evolutionary
approach to world building rather than a centralized, socialistic one.”).
95. Terms of Service, SECOND LIFE (Dec. 15, 2010), http://secondlife.com/corporate/tos.php.
96. A user script might, for example, allow an avatar to fly higher than the game allows by
default or augment the actions an avatar can perform. See BENJAMIN TYSON DURANSKE, VIRTUAL
LAW: NAVIGATING THE LEGAL LANDSCAPE OF VIRTUAL WORLDS 251 (2008).
97. Michael Learmonth, Virtual Real Estate Boom Draws Real Dollars, USA TODAY, June 3,
2004, http://www.usatoday.com/tech/webguide/internetlife/2004-06-03-virtual-realty_x.htm.
98. Press Release, Linden Lab, Second Life Residents to Own Digital Creations (Nov. 14,
2003), available at http://www.lindenlab.com/releases/second-life-residents-to-own-digitalcreations.
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A. Gods and Demigods
The question of rights within the virtual world has been, for the legal
community, a persistent inquiry into precisely who owns what and why.99
The debate has straddled a number of fields and invoked a variety of legal
and social theories.100 Yet the question remains, at best, incompletely
answered.
The earlier discussion of Habitat highlights the looming uncertainty in
the relationship between the provider of the world and the users who inhabit
it. Habitat was, first and foremost, a creation of the engineers who designed
the system and wrote the code. The developers quickly realized that they
could not create content to satisfy user consumption, nor could they predict
user behavior with enough accuracy to create compelling content.101 To
serve the goals of providing an open-ended world and maintaining user interest, the developers shifted Habitat to a user-driven platform in which the
developers served as facilitators rather than overlords.
Given the invitation, the Habitat community became increasingly involved in contributing to the substance of the world—running newspapers,
hosting social events, starting businesses102—and the experiment took on a
markedly more significant meaning.103 The user content creators assumed a
role previously reserved for the developers; thus they were not merely a
part of the user class, but they were not entirely a part of the developer class
either. The developer maintained dictatorial power over even the most
respected contributor. Yet within Habitat, the relatively small size of the
community fostered a collegial relationship amongst all parties involved.104
However, the potential for conflict between users and developers was manifest. Shortly after the time of its creation, developers and scholars began to
contemplate the challenges it presented in a system of a much greater
scale.105
99. See Gomes de Andrade, supra note 31, at 23–24.
100. See, e.g., Edward Castranova, The Right to Play, in THE STATE OF PLAY: LAW, GAMES,
AND VIRTUAL WORLDS, supra note 22, at 68, 68–85; James Grimmelmann, Virtual Power Politics, in THE STATE OF PLAY: LAW, GAMES, AND VIRTUAL WORLDS, supra note 22, at 146, 146–57;
Gomes de Andrade, supra note 31; Jamie J. Kayser, The New New-World: Virtual Property and
the End User License Agreement, 27 LOY. L.A. ENT. L. REV. 59, 61–62 (2007) (discussing the
greater issue of the relationship between user and provider. See also Ralph Koster, Declaring the
Rights of Players, in THE STATE OF PLAY: LAW, GAMES, AND VIRTUAL WORLDS, supra note 22, at
55, 55–67; Tigran Palyan, Common Law Privacy in a Not so Common World: Prospects for the
Tort of Intrusion upon Seclusion in Virtual Worlds, 38 SW. L. REV. 167 (2008) (providing examples of specific inquiries that depend on some resolution of the broader relationship issue).
101. See generally Morningstar & Farmer, supra note 13, at 11–14 (discussing the evolution
of Habitat and the ways the developers managed user needs).
102. See id. at 11–12.
103. See id. at 2 (“[C]yberspace is defined more by the interactions among the actors within it
than by the technology with which it is implemented.”). Id.
104. Id. at 12.
105. Id.
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Second Life is just that: the nearly one million active users and tens of
millions of avatars registered to use the system makes Habitat’s planned
population cap of 50,000106 look pedestrian in comparison. Modern virtual
world developers face all the same problems as those who created Habitat.
But these challenges are compounded due to the broad range of participants
that inherently differ from the tech-minded and educated users of the
nineteen eighties’ networked virtual worlds. While the proprietary rights to
the code and the network framework upon which the world depends is possessed solely by the developer, the intrinsic value of these worlds arguably
falls in the hands of the many users who contribute to its content, whether
by creation or participation. But unlike an artist who creates a work that has
value dependent only on its preservation, the value of virtual world content
is dependent on code. And data does not deteriorate, it is erased.
B. The Fact of Code
Like the artist who determines the boundaries of the world presented
by her art, architects of code determine the boundaries—or laws—governing virtual worlds.107 Virtual property, virtual chattels, avatar clothing,
homes, and vehicles—all of these things reside on hard drives hosted by
servers owned and maintained by a software company. Even the gamut of
behavior an avatar may exhibit is executed according to a set of fundamental algorithmic rules. While some traditional principles of property law—
right to possess, to enjoy income from, to alienate108—are consistent with
notions of virtual property rights, the capacity for a person to truly have an
“unrestricted right . . . of use”109 defies both the nature of the technology
and the relationship of the thing to the world in which it exists.
In a lecture given at a computing and technology conference held in
2000, Professor Lawrence Lessig explained that:
[c]yberspace has an architecture; its code—the software and hardware that defines how cyberspace is—is its architecture. That architecture embeds certain principles; it sets the terms on which
one uses the space; it defines what’s possible in the space. And
these terms and possibilities affect innovation in the space. Some
architectures invite innovation; others chill it.110
Here, Lessig highlights a point of central importance to the question of
law in virtual worlds. In the real-world, people are generally accustomed to
106. Id.
107. To simplify the concept for the purposes of this discussion: code is the language used to
create a virtual world, not dissimilar from an author’s prose. Coding is the act of construction;
writing the novel, so to speak.
108. 63C AM. JUR. 2D. Property § 1 (2013).
109. Id.
110. Lawrence Lessig, Professor, Harvard Law Sch., The Code in Law, and the Law in Code,
Lecture delivered at the pcForum (Aug. 15, 2000) (draft available at http://www.stanford.edu/
class/msande91si/www-spr04/readings/week3/Lessig-pcforum.pdf).
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the fact that the law places restrictions on that which may otherwise be
freely performed. Absent any physical encumbrance such as the laws of
physics, both the spectrum of action and the various implications of those
acts are myriad. The act of firing a weapon, for instance, may be entirely
benign under certain circumstances; however, if the weapon is fired into the
body of another person, grievous injury or death may result. Thus the impetus to implement law: in order to prevent the commission of acts with objectively negative consequences, we fashion a criminal code.
Consider, on the other hand, a comparable law instituted in a virtual
world. Though a user may be able to cause her avatar to pantomime the act
of murder, if the program does not allow an avatar to discharge a virtual
firearm such that it will strike the body of another avatar, the act that constitutes the crime simply cannot be performed. That an avatar cannot technically die is another matter altogether.
The fact that criminal conduct is possible to commit in the real-world
despite a specific prohibition raises the necessity for a deterrent (i.e., prison
or fines). In the virtual world no deterrent is required because the act constituting the crime can be summarily excluded from the scope of possible
behavior. Similarly, while humans are bound by immutable laws, such as
gravity, avatars are bound only by lines of code that recognize no distinction between the laws of physics and the laws of man. And regardless of
how closely such laws approximate real legal prohibitions targeting acts
that society finds objectionable, code-level law either excludes the performance of a specific act that is otherwise provided for by a broader subset of
general acts or fails to provide any instruction as to the act. An example of
the former would be to permit the discharge of firearms within a virtual
world but remove the ability to do so when the firearm is pointed at an
avatar. An example of the latter would be to specifically omit the instruction from the software entirely: if any virtual firearms existed, the function
of discharge would be unavailable.
In theory, code can always prevent an undesirable act with a sufficient
objective definition. If turning while walking was deemed to be undesirable, the act of turning while walking could be programmatically excised.
Yet such a broad restriction would inhibit the user experience. Indeed,
code-level exclusion of a certain type of conduct might subsequently prevent a wide variety of other desirable acts. For example, a certain variety of
exploitative conduct111 universally regarded as an inherent evil in the realworld was at one point an entirely unrestricted activity in Second Life. Save
for the few individuals who consider the virtual depiction of real criminal
111. I refer specifically to conduct commonly known as “age play,” in which virtual world
users would act out the sexual exploitation of a minor. See, e.g., Burcu Bakioglu, Spectacular
Interventions in Second Life: Goon Culture, Griefing, and Disruption in Virtual Spaces, 1 J. VIRTUAL WORLDS RES., no. 3, Feb. 2009, at 3, 8, http://journals.tdl.org/jvwr/article/view/348/421.
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conduct as a favorable alternative to the actual commission of the same,
there was no articulable reason not to proscribe such behavior.112
To affect a prohibition, however, would not be as easy as excluding
simultaneous walking and turning. Because a necessary condition of the
crime involves user-defined parameters (the avatar “skin,” or appearance),
rather than a mechanism provided for by code, the full elimination of such
conduct would exact a heavy burden on the user’s freedom to design. The
obstacle is not that user skins couldn’t be categorized, thus enabling the
developer to define and preclude certain interactions between avatars
skinned as members of specific age classes; instead, the obstacle to codelevel prohibition here lies in the underlying duty to review and designate
every user skin introduced into the system. If the developers failed, an offender could circumvent the prohibition by creating and using a “minor”
avatar skin before administrators defined it to be within the purview of the
law.
If absolute, programmatic exclusion of the exploitative conduct was a
necessity, only Sophie’s choice113 remained: Linden Lab would be forced
either to eliminate the use of user-designed skins and other aspects of the
personal aesthetic or omit from basic gameplay the element of physical intimacy to the extent that the underlying, software defined “actions” could be
manipulated for unlawful use.114 In each case, the cost of eliminating the
112. For a more thorough treatment of the issue, see generally Robin Fretwell Wilson, Sex
Play in Virtual Worlds, 66 WASH. & LEE L. REV. 1127 (2009), which argues that Federal laws
intended to prevent the exploitation of minors by internet predators may be applicable to acts
undertaken entirely within a virtual world. To wit: an adult who seeks to engage in the prohibited
conduct with anonymous users “do so at their own peril” due to the ease with which the intended
beneficiary of the law—minors, or children—can circumvent age restrictions. Id. at 1174.
113. A necessary decision between two equally unbearable options. See generally WILLIAM
STYRON, SOPHIE’S CHOICE (1979).
114. The specific mechanics of the code-as-law discussion have been simplified to some extent to serve the interest of clarity. The argument purposefully ignores the fact that the entirety of
the Second Life platform is not developer-designed. Though the degree to which user-contributions have augmented the underlying software platform are beyond the specific knowledge (and
expertise) of the author, there are a few points worth drawing out.
The fundamental principles of restrictive and permissive prohibition are derived from two
common logical operators, “not equal to” ( != ) and “equal to” ( == ). In theory, the difference
between the two is a matter of semantics: one person states “that shirt is red” and another states
“that shirt is not blue.” The significance of this is that in order to prohibit specific conduct the
program must be able to determine either (a) the conduct in question is equal to the conduct that is
specifically prohibited, or (b) the conduct in question is not equal to any of the conduct that is
specifically allowed.
As a general principle, and to use the examples of Second Life and World of Warcraft to
illustrate, objective-oriented virtual worlds contain an inherently greater number of rules shaping
the user experience. Some examples of this include a restriction on the infliction of harm in certain
“safe” areas such as towns, or the inability to kill certain non-player characters such as those that
serve to advance the storyline; some character races, too, are limited to certain classes of weaponry and are only able to learn a specific set of “skills.”
On the other hand, Second Life imposes no such restrictions and does not tailor the experience in any way. Though killing is not an act specifically programmed into the platform (and thus
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abhorrent conduct exhibited by a select minority would distort two
hallmarks of the Second Life experience: identity expression/exploration
and the development of physical and emotional relationships.
When faced with this dilemma, however, Linden Lab chose not to impose any of the above-mentioned restrictions. Instead, it introduced a clause
into the user agreement which forbade the exploitative conduct, thus manifesting a real-world criminal prohibition in the form of a contractual provision.115 In effect, the developers avoided the summary prevention of
undesirable behavior in order to promote user freedom. The specific clause
incorporated into the terms of use (now part-and-parcel to the contractual
relationship between the user and world provider) acts as a criminal statute
carrying a punishment of removal. Interestingly, however, though it does
create a right vested entirely in the developer, it does not impose any corresponding obligation.116
Though an extreme example, the preceding discussion illustrates just a
few of the difficulties that developers face when they must define the limitations of acceptable user conduct. The preference for contract-based, rather
than code-based, regulation is a point of interest which demonstrates the
developer’s commitment to the ideal of free exploration. Moreover, the fact
that Linden crafted the provision to target the user in her specific capacity
as a contract participant underscores a fundamental discrepancy between
the respective interests of users and developers. A user, on the one hand,
pursues a vicarious corporeal experience through her avatar and its/her interaction with the virtual world. Increasing emotional investment in the
world fosters a proprietary curiosity in her otherworldly existence, and she
begins to self-identify not as the human, but as the incarnation. On the other
hand, the developer balances two interdependent and conflict-prone interests: its own financial and legal security, and its self-interest in maintaining
impossible to do), users are permitted to create add-ons, which augment the functionality of the
game. A group of users engaged in a long-standing medieval fantasy created a dueling add-on that
displayed a rudimentary life bar which was reduced with each successful blow. There was no
stylish animations or professional sound effects—but then, if the users wanted to recreate World
of Warcraft they might have an easier time of it just signing up for an account.
Linden Lab’s purposeful aversion to obstructing the dynamic evolution of Second Life is, in
fact, the greatest hindrance to the circumscription of conduct. Moreover, that users can write their
own code and simply plug it into the game means that an objective definition of an objectionable
act is prone to needless complication by duplicitous snippets of user code that each define substantially similar conduct. In addition, specific prohibition is also readily avoided by the use of userdeveloped code that achieves (without detection) a purpose targeted by a prohibition.
115. Wilson, supra note 112, at 1137; Robin Linden, Accusations Regarding Child Pornography in Second Life, SECOND LIFE BLOG (May 10, 2007, 5:32 AM), http://community.secondlife.
com/t5/Features/Accusations-Regarding-Child-Pornography-in-Second-Life/ba-p/575781 (indicating that Linden Lab has a zero tolerance policy for “age play” and will ban users found to be
engaging in such conduct).
116. See Terms of Service, supra note 95, at § 4.3 (“Linden Lab is a service provider and is
not responsible or liable for the content, conduct, or services of users or third parties.”).
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a dynamic virtual world economy while addressing the needs of its users
when it can and abating discontent when it cannot.
C. The User Agreement in Context
The End-User License Agreement and the Terms of Service (“user
agreements”) are two types of agreements to which a user is generally required to accede before entering a virtual world. These are generally offered
at the time the user installs the client software and/or upon entry into the
virtual world.117 In other words, users are generally afforded no more entitlement and no more protection than the developer chooses. It would be
inaccurate to contend that users are wholly unprotected, but the efforts that
developers make to ensure user safety usually arise under widespread discontent or necessity. American courts have relied so strongly on these
agreements that very few virtual property disputes advance to trial.
One of the most widely discussed cases involving virtual law arose out
of a Second Life land auction exploit. An avid user, Marc Bragg, discovered an exploit that allowed him to access virtual property auction
webpages before they opened to the general public. Using the exploit,
Bragg placed minimum bids on several auctions that were not yet live.118
The bids went unchallenged (as the auction pages were not searchable) and
Bragg won several plots at a bargain price. When Linden discovered
Bragg’s purchases, it froze his account and “effectively confiscate[ed]” all
property and currency he owned in the virtual world.119 Bragg filed a
breach of contract and negligent representation120 action seeking redress for
his losses.121 Though Bragg alleged that Linden Lab violated his ownership
rights in the virtual property by freezing him out of his account, the court
resolved the matter at the contract level due to an unenforceable mandatory
arbitration provision.122 Linden reinstated Bragg’s account but retained the
real estate parcels; the question of the legal status of virtual land went
unanswered.
Absent a valid contract defense or cognizable defect, user agreements
have generally been upheld as valid in the context of virtual worlds. In a
2010 case, Blizzard Entertainment (“Blizzard”) was subject to a lawsuit by
MDY Industries (“MDY”) for a declaration that Glider, an automation pro117. DURANSKE, supra note 96, at 27.
118. See Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 596–97 (E.D. Pa. 2007); LASTOWKA, supra note 5, at 17. Bragg discovered that when he manually typed auction addresses into
his internet browser, plots that had not opened for bidding and were unavailable by search would,
nevertheless, accept user bids.
119. Bragg, 487 F. Supp. 2d at 597.
120. Plaintiff’s Complaint in Civil Action at 1, Bragg v. Linden Research, Inc., No. CV-7606
(Pa. Ct. C.P. Chester Cnty. Oct. 4, 2006). Though these are the primary causes of action, three
others appeared on the complaint. Id.
121. For a more in-depth discussion of the claim see LASTOWKA, supra note 5, at 17–19.
122. Bragg, 487 F. Supp. 2d at 611.
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gram (or “bot”) it created, did not infringe any of Blizzard’s copyrights.
Blizzard raised several counterclaims, including copyright infringement,
that sought to enjoin further development and sale of Glider.123 Users could
leave their computers for hours or even days at a time while Glider autoplayed the game—it even picked up gold and weapons that enemies
dropped. As MDY’s website explained:
Glider . . . moves the mouse around and pushes keys on the keyboard. You tell it about your character, where you want to kill
things, and when you want to kill. Then it kills for you, automatically. You can do something else, like eat dinner or go to a
movie, and when you return, you’ll have a lot more experience
and loot.124
Thus a user could potentially “glide” a new, un-played character full-time
and gain experience points—the currency of skill development and other
battle abilities—at a rate of more than seven times faster than the average
user.125
Although Blizzard was already privy to the fact that cheating occurred,
hundreds of thousands of complaints about the use of bots were submitted
between 2004 and 2008, and thousands identified Glider by name. Blizzard
initially responded by creating Warden—a detection and reporting program—and adding it to the client software. Warden identified when bots
such as Glider were being used; the violations it reported resulted in penalties as serious as account suspension or deletion.126 MDY responded by
modifying Glider to evade detection—a successful and lucrative update that
was quickly obviated by an in-kind response. The companies engaged in a
series of update exchanges until the matter came before the court.127
Blizzard’s claims were based on a clause in the user agreement that
prohibited the use of third-party software to play the game in ways not
intended by the developer—in essence, an infringement claim.128 The court
granted Blizzard’s summary judgment motion as to its claims of tortious
interference, facilitating copyright infringement, and trafficking in copy123. MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928, 935 (9th Cir. 2010)
(opinion amended by MDY Industries, LLC v. Blizzard Entertainment, Inc., Nos. 09-15932, 0916044, 2011 WL 538748 (9th Cir. Feb. 17, 2011)).
124. MDY Industries, 629 F.3d at 935. MDY’s website was shut down subsequent to the trial
court ruling in 2009; visiting www.mmoglider.com now shows only a “forbidden” file permission
error.
125. This is a rough estimate calculated using the average weekly in-world figure of twentytwo hours per week and an uninterrupted use of Glider over the same period of time, or 168 hours.
126. For a detailed discussion of the nature of the various copyright claims brought by Blizzard—namely, the difference between traditional claims pursuant to the unauthorized copying of
protected content and to prohibit the improper use of protected content under the Digital Millennium Copyright Act—see MDY Industries, 629 F.3d at 943–52.
127. See id. at 936. See also LASTOWKA, supra note 5, at 180 (noting that MDY sold over
100,000 copies of Glider by 2008, netting profits of over three million dollars).
128. MDY Industries, 629 F.3d at 936.
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right circumvention measures in violation of the Digital Millennium Copyright Act (“DMCA”).129 MDY appealed and the Ninth Circuit vacated the
lower court decision, narrowing the basis of liability to the “trafficking”
previously mentioned.130
Although the rationale underlying the decision is somewhat abstract,
the fundamental justification is simple. MDY developed and marketed
Glider as a tool that facilitated prohibited conduct—here, botting131—
which it achieved by circumventing access control measures that Blizzard
specifically implemented to proscribe such conduct.132 The court read the
statute sufficiently narrow to hold MDY liable for indirect copyright infringement while excluding individual users merely using the kind of
software MDY created from purview of the DMCA. The court did, however, indicate that the violations of the user agreement were actionable
under contract law, and thus suggested that individuals were not immune to
suit.133 More importantly, however, the MDY opinion underscored the developer’s entitlement to some means of control over the way participants
use its software and shifted the balance of equities decidedly away from the
user.
Briefly reflecting on the broader implications of MDY, it is important
to recognize that Blizzard sought an injunction for the benefit of the World
of Warcraft users. Had the level of overt discontent not reached a critical
mass, there would have been little motive to pursue legal action against
MDY. Even the economic loss of subscription fees to discontented users
could likely never outweigh the specific economic disincentive to litigation.
But by going to court for the betterment of the realm, Blizzard not only
vindicated its right to enforce its expectations of the user experience but it
diversified the means to do so.
Contract liability for user agreement violations begs the question: to
what extent can third parties litigate issues that the software developer may
choose to avoid? Individual users have brought claims against other users
for prohibited use of a virtual world under a third-party beneficiary theory.
129. MDY Industries v. Blizzard Entertainment, Inc., No. CV-06-2555-PHX-DGC, 2008 WL
2757357, at *17 (D. Ariz. July 14, 2008).
130. Id. Under the DMCA, the circumvention of measures taken by a developer to prevent
prohibited use of its product constitutes copyright infringement. 17 U.S.C. § 1201(a)(2)(A)
(2010).
131. Using bots, or automations programs, as described supra pp. 29–30.
132. MDY Industries, 629 F.3d at 953–54. The specific requirements for such a claim are “(1)
traffic[king] in (2) a technology or part thereof (3) that is primarily designed, produced, or marketed for, or has limited commercially significant use other than (4) circumventing a technological
measure (5) that effectively controls access (6) to a copyrighted work.” Id. at 953. The specific
application of § 1201(a)(2) in this case involves the “dynamic, non-literal” software elements
under copyright protection. The court embarks on a detailed discussion in which it parses this
aspect of DMCA liability as well as the other relevant considerations applicable to the copyright
aspects of Blizzard’s claim. See id. at 942–54.
133. Id. at 939–42.
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One such example is the case of Hernandez v. IGE, a dispute in which a
World of Warcraft user filed a suit against a real money trading (“RMT”)134
operation dedicated in part to commercial gold farming for harm arising out
of a user agreement violation. The practice of gold farming is straightforward: employees work long shifts playing a game in order to collect gold,
which the company then sells through a website or an auction site such as
eBay.135 Thus users can trade real money for in-world currency, which in
turn can be used to buy powerful combat gear. The underlying problem is
similar to that which arose in MDY: users who invest honest gameplay to
get the matériel feel cheated when another simply pays for it at auction.
Hernandez’s claim specifically alleged that IGE’s conduct violated the
World of Warcraft user agreement and “substantially diminish[ed] the enjoyment and satisfaction consumers obtain by earning, through the expenditure of vast amounts of time and energy, virtual assets within [the
game].”136 The case, however, ended in settlement. IGE agreed to cease its
virtual asset sales for a period of five years, though it denied any
wrongdoing.137
Shortly before the Hernandez suit materialized, Blizzard initiated a
similar action against a different RMT company.138 In Game Dollar, like
IGE, engaged in RMT activities, provided “power leveling”139 services, and
actively advertised over the game’s chat system.140 Here, though the claim
was targeted at conduct that spoiled the fun for other users, it was the act of
excessive advertising through the game’s chat system—as opposed to
RMT—that Blizzard chose to target.141 As was the case with Hernandez
and MDY, this dispute settled before trial.142
These examples are a few of a number of similar cases that demonstrate the efficacy with which user agreements have served the interest of
promoting virtual world behavioral norms. In-game claims devices, such as
134. “RMT” is a common term referring to all activities involving the collection of virtual
items with the specific purpose of selling them at auction or through an online retail gateway.
135. See LASTOWKA, supra note 5, at 22–25, 157.
136. Class Action Complaint at 2, Hernandez v. Internet Gaming Entertainment, LTD., No.
07-CIV-21403 (S.D. Fla. May 30, 2007).
137. Joint Stipulation with Attached Order, Hernandez v. Internet Gaming Entertainment,
LTD., No. 07-CIV-21403 (S.D. Fla. Aug. 26, 2008).
138. See Complaint at 5–6, Blizzard Entertainment, Inc. v. In Game Dollar LLC, No.
SACV07-0589 JVS (C.D. Cal. May 22, 2007) (alleging violations cause a loss of the game’s
immersive effect, deterioration of social environment, and degradation of the game performance).
139. Power leveling services are generally when a player pays another person to play the game
in order to “level up” their character. This more-or-less achieves the same result as the Glider
program did, yet the user can pay for a certain number of levels to be advanced within a certain
amount of time rather than leave his or her character on autopilot for an unknown amount of time.
140. Complaint, supra note 138, at 5–6.
141. Id.
142. Consent Permanent Injunction, Blizzard Entertainment, Inc. v. In Game Dollar LLC, No.
SACV07-0589 JVS (C.D. Cal. Dec. 17, 2007).
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reporting systems for user-submitted abuse reports,143 facilitate the enforcement of the terms of use but do not necessarily stop abuse from occurring.
But the fact that both users and virtual world providers have leveraged the
courts to address problems is evidence that virtual world service abuse is
not necessarily the result of a failure on the part of the developer to enforce
rules. Indeed, when it comes to gameplay ideals and “community standards” it appears that both developers and users have a stake in preserving
the purity of the experience. Claims arising out of a purely personal interest,
such as intellectual property rights, are almost exclusively pursued by users.
D. Intellectual Property and User Rights
The nature of virtual content has a tendency to frustrate effective copyright protection. For a clear example, one need only look to the ease with
which a person can obtain unreleased movies or a musician’s entire discography through any one of the myriad peer-to-peer file sharing networks.144
In any virtual world, user-created content is merely computer code designed
to look and act like consumer knick-knacks such as wardrobe accessories,
armaments, or automobiles.145 Non-aesthetic content could be any code that
modifies the user interface or, as in Eros, LLC. v. Leatherwood, a Second
Life script that augments the available avatar “poses”146 to include certain
sexual gestures.147
Of course, technologies exist that allow users to circumvent these protections and effectively remove the DRM permissions that control the extent to which an item can be owned or modified and by whom.148 This
undermines any purported intellectual property rights vested in the user and
creates a significant disincentive for virtual entrepreneurs to engage the virtual market. Thus it would presumably be in the interest of both Linden Lab
and the user to maintain those rights when practicable. Yet this has not been
the case.
143. See, e.g., Community Standards, SECOND LIFE, http://secondlife.com/corporate/cs.php
(“Residents should report violations of the Community Standards using the Abuse Reporter
tool . . . .”); In-Game Policies, BLIZZARD ENTERTAINMENT, (Jan. 15, 2013), http://us.blizzard.com/
support/article.xml?locale=en_US&articleId=20309 (outlining World of Warcraft Harassment
Policy, specifically, “user tools” to avoid and report harassment).
144. Searching for “Frank Zappa discography download” on Google.com returns over a half
million results, the first page of which is entirely comprised of links to various peer-to-peer file
networks that purport to offer for download the entirety of Zappa’s legendary ninety-one-album
collection.
145. See LASTOWKA, supra note 5, at 151 (discussing role of code).
146. Second Life avatars are pre-scripted to perform certain movements—or “poses”—such as
walking, sitting, and sleeping. A user can theoretically mimic any action using other basic movement types. For example, one could “dance” by frantically turning and stepping her avatar in
various directions, but a user who frequently “dances” in Second Life could opt to use the “dance”
pose, which animates the avatar appropriately and adds an element of realism to the act.
147. See LASTOWKA, supra note 5, at 191–93 (discussing Eros, LLC v. Simon, No. 2007-CV04447-SLT-JMA (E.D.N.Y. Oct. 24, 2007)).
148. Hunt, supra note 85, at 147–48.
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The Eros case mentioned above is one of many claims149 brought by
Eros LLC, a Second Life developer of adult-themed products called
SexGen beds. The beds provided both visual (the bed) and technical (the
programmed poses) augmentations to the platform that allowed users to
simulate sexual acts between their own avatar and other avatars.150 The
proprietor of Eros, Kevin Alderman, sold his real-life plumbing business to
work full-time online. His beds sold for around forty-five U.S. dollars each,
and they became quite popular in a short time.151 Not long after putting the
SexGen line on the market, he discovered what he believed were digital
knock-offs of his products. Using a claims mechanism provided by Linden
Research, he sought assistance in the enforcement of his intellectual property rights. Linden did not acquiesce to Alderman’s requests to have the
infringing items removed.
Taking matters into his own hands, Alderman applied for a copyright
and trademark on the SexGen name and the programmed avatar animations.152 He filed suit in federal court against Volkov Cattaneo, the avatar
behind the copyright violations. Cattaneo initially failed to respond to the
complaint so Alderman subpoenaed subscription records from Linden Lab,
America Online, and Charter Communications in order to obtain the Cattaneo account information. Alderman finally identified the infringer as Robert Leatherwood, a Texas teenager.153 Leatherwood declined to respond a
second time to an amended complaint, but after default judgment was entered against him he negotiated a settlement that enjoined further violation
of Eros’ copyright.154
Another infringement case appeared under slightly different circumstances. Minsky v. Linden Research Inc. arose out of a trademark infringement claim. Minsky—a progenitor and patron of virtual objects d’art—
published a Second Life art circular under the name “SLART”155—a humorous moniker he invested in after determining it was not previously used
149. See Complaint at 16, Eros, LLC v. Simon, No. 07-CV-04447-SLT-JMA (E.D.N.Y. Oct.
24, 2007) (alleging, inter alia, that defendants made and sold unauthorized copies of plaintiff’s
digital content).
150. Sharon K. Lowry, Comment, Property Rights in Virtual Reality: All’s Fair in Life and
Warcraft?, 15 TEX. WESLEYAN L. REV. 109, 115–18 (2008) (noting that Alderman claims to have
sold thousands of SexGen beds).
151. Id. at 116.
152. See id. at 124. See also Jennifer Gong, Note, Defining and Addressing Virtual Property
in International Treaties, 17 B.U. J. SCI. & TECH. L. 101, 116 (2011). Interestingly, confusion
over the nature of the product resulted in significant difficulty in obtaining a trademark and
copyright.
153. Lowry, supra note 150, at 124–25.
154. Id.; see Judgment by Consent as to Defendant Robert Leatherwood at ¶ 3, Eros, LLC v.
Leatherwood, No. 07-CV-01158-SCB-TGW (M.D. Fla. Mar. 20, 2008); First Amended Complaint – Injunctive Relief Sought and Demand for Jury Trial, Eros, LLC v. Leatherwood, No. 07CV-01158-SCB-TGW (M.D. Fla. Oct. 24, 2007).
155. A combination of the initials “SL,” referencing Second Life, and “ART.”
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within or without the virtual world.156 Minksy successfully applied for a
trademark with the United States Patent and Trademark Office pursuant to
Linden’s representations that users had ownership over their intellectual
property.157 Another Second Life user later opened an art gallery using the
name “SLART,” and Minsky attempted to notify the user of the violation.158 Following a Linden Lab reporting procedure similar to that which
Alderman used, Minsky filed a report requesting removal of the infringing
content. But the company declined to provide contact information for the
offending user, indicated that Minsky misstated the origin of SLART, and
that he had no trademark rights to the name.159 Minsky filed suit against
Linden, Linden executives, and John Doe (the offending user) alleging primary and contributory trademark infringement, tortious interference, and
fraud.160
The case evolved into a claim solely against Linden after Minsky
moved to dismiss John Doe, though it never went to trial. Before settlement
in 2009, however, Minsky was granted a temporary restraining order
(“TRO”) compelling Linden to comply with the policies set forth for addressing user reports of trademark infringement. The TRO obligated Linden
to contact any user that Minsky reported to be infringing on his SLART
trademark and to remove the offending content if the user did not do so
voluntarily.161 Within the TRO, however, was a strict definition of what
constituted infringing content. Linden successfully opposed a motion to
compel after failing to remove reported content that, though nearly identical
to Minsky’s trademark, was technically beyond the scope of the definition
provided in the TRO.162 Regardless, the company settled the matter with
156. See Amended Complaint of Trademark Infringement and Dilution, Contributory Infringement and Dilution, Tortious Interference, Fraud at ¶ 12, Minsky v. Linden Research, Inc., No. 08CV-819-LEK-DRH (N.D.N.Y. July 29, 2008) [hereinafter Minsky Complaint] (discussing the
conception of the SLART name).
157. See SLART, Registration No. 3,399,258. All of the existing marks were distinct insofar
as each included a space after “SL” (SL Art, etc), were pronounced differently than SLART, and
the existing uses of SLART were unrelated to the Second Life world. See supra notes 155–56 and
accompanying text; Minsky Complaint, at ¶¶ 15, 18–20.
158. Minsky Complaint, supra note 156, at ¶¶ 24–28.
159. Id.; accord Defendant Linden Research, Inc.’s Response in Opposition to Appeal of
Magistrate Judge’s Decision at 2, Minsky v. Linden Research, Inc., No. 08-CV-819-LEK-DRH
(N.D.N.Y. Jan. 21, 2009).
160. Minsky Complaint, supra note 156, at ¶¶ 40–75.
161. See Temporary Restraining Order by Consent at ¶ 1, Minsky v. Linden Research, Inc.,
No. 08-CV-819-LEK-DRH (N.D.N.Y. Sept. 12, 2008).
162. See Memorandum-Decision and Order at 4, Minsky v. Linden Research, Inc., No. 08CV-819-LEK-DRH (N.D.N.Y. Dec. 12, 2008) (stating, in support of a motion to dismiss, “[t]he
plain language of the TRO clearly and unambiguously identifies uses that are infringing as those
employing SLART as one word with all letters in a uniform size, font and color.”) (internal quotations omitted).
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Minsky, honoring his trademark rights and removing any impermissible
content that remained.163
The unique nature of protected digital content in virtual worlds has
been recently highlighted in a case involving two Second Life entrepreneurs
that created virtual pets for users’ purchase and entertainment. The plaintiff,
Ozimals, Inc., developed and sold virtual bunnies; the defendant, Amaretto
Ranch Breedables, created and sold virtual horses. The crux of the dispute
was whether the virtual horses violated a copyright associated with the virtual bunnies due to the fact that the horses, like the bunnies, required food
to survive.164 The suit, which sought to enjoin Linden Lab from removing
Amaretto’s horses from the Second Life market, was brought following a
DMCA takedown action filed by Ozimals.165 The DMCA claim alleged that
the food requirement constituted a specific functionality that was protected
by copyright. Amaretto successfully contended that neither the product nor
the programming violated software copyright law, and a preliminary injunction was granted pending the resolution of the action.166
Important here is not the nature of the lawsuit, but rather the very real
problem that the “code is law” maxim creates with respect to the protection
of virtual goods. Whereas software copyright law may be applicable to the
myriad virtual goods that are created in Second Life and other virtual
worlds, the goods themselves are neither used nor seen by users as
software. For instance, Microsoft Word is a traditional piece of software in
the sense that a user executes it in order to access the functionality it provides. On the other hand, a virtual pet is purchased not for its interaction
with the system or for a specific functional capacity (like word processing),
but for personal enjoyment akin to that which one might derive from owning a pet. And although the interaction with both traditional software and a
digital pet is entirely confined to a series of calculations defined by lines of
code, the virtual world atmosphere and culture materially alters the nature
of the relationship between the user and the fiction created by that code.
The result of the conduct underlying these cases is largely confined to
the devaluation of virtual currency and the souring of the virtual world experience. The impact on the real interests of users, as will be discussed in
the following section, is not insubstantial. Cases have been decided on the
terms of user agreements and have been settled in line with those terms; the
problem, when understood in this light, is most closely tied to game developers’ disinterest in the active enforcement of their rules.167
163. See Judgment Dismissing Action by Reason of Settlement, Minsky v. Linden Research,
Inc., No. 08-CV-819-LEK-DRH (N.D.N.Y. Jan. 22, 2009).
164. See Amaretto Ranch v. Ozimals, Inc., No. 10-05696 CRB, 2010 WL 5387774, at *2
(N.D. Cal. Dec. 21, 2010).
165. Id.
166. Id. at 2–3.
167. See IAN WARREN & DARREN PALMER, AUSTRALIAN INST. OF CRIMINOLOGY, Crime Risks
of Three-Dimensional Virtual Environments, in TRENDS AND ISSUES IN CRIME AND CRIMINAL JUS-
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E. Legal and Social Codes of Conduct
Virtual world misconduct ranges from truly illegal to truly absurd, and
the protection of user rights has occurred on a number of levels, both legal
and non-legal. At the most local level, user communities independently institute unique social codes and quasi-legal procedures that operate only
within the scope of the virtual world.168 While remaining powerless to completely resolve issues such as copyright and trademark violations, these do
serve to expand duties imposed by the rules of the game.169 These rules are
substantiated within the user agreements and any existing community code
of conduct and form the basis for adjudication of internal claims raised
through channels provided by the developer. As discussed above, these
serve to rectify the terms of the user agreement only to the extent that the
world provider is willing to enforce the rules it sets forth. The scope of
actionable conduct—tantamount to the common law use of precedent—is
generally at the discretion of the virtual world provider pursuant to the contractual right to run the virtual world as it sees fit.170
Legal claims generally involve conduct that violates existing provisions of law or contract not unique to virtual worlds. The legal theories
generally focus on intellectual property rights, copyright, and trademark law
while contract theories tend to turn on the usage guidelines set forth by the
applicable user agreements. Yet the extent of copyright protection and the
amount of legal interest a person has in the virtual assets acquired in a
virtual world is directly related to the user agreement. Blizzard Entertainment, for instance, makes perfectly clear its intent to divest the user of all
ownership and property interest in an account and the items acquired
through that account.171 The game, in this case, is a service and not a
right—a user’s account may be terminated at any time for any agreement
TICE, NO. 388, at 3 (Feb. 2010) (“The burdens of maintaining good order and resolving disputes in
the numerous sites within any global multi-user [virtual world] 3dve platform makes stringent
enforcement or dispute resolution processes impractical and unlikely.”). Id.
168. See, e.g., Notice of Official Judgment, In the matter of: Tiggs Beaumont and ElvenDeep
Sim, (Oct. 14, 2007) (on file with author) (recounting the decision of a judicial panel in a Second
Life “clan” regarding the banishment of a member for conduct which constituted “abuse of group
membership”).
169. See Sixma, supra note 64, at 10–15 (explaining various quasi-laws within the virtual
world).
170. See World of Warcraft Terms of Use, BLIZZARD ENTERTAINMENT (Aug. 22, 2012), http://
us.blizzard.com/en-us/company/legal/wow_tou.html (“Blizzard reserves the right to determine
which conduct it considers to be outside the spirit of the Game . . . .”).
171. Id. (“NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER
PROPERTY INTEREST IN ANY ACCOUNT STORED OR HOSTED ON A BLIZZARD SYSTEM, . . . AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN
AND TO SUCH ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE
TO THE BENEFIT OF BLIZZARD.”) (emphasis in original).
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violation.172 And pursuant to the ownership interests it reserves, Blizzard
affirms that any transfer of virtual property is null and void.173
When the virtual world provider invests the user with greater legal
ownership over items introduced into or acquired within the game, such as
is the case with Linden Lab, decisions have still hinged on the terms of the
user agreement. In Bragg, for instance, a defective contract merited the
claim. Minksy, on the other hand, appears to favor the user’s property interest, yet the TRO was issued on the basis that Linden had not delivered on
its promise to honor and protect trademark and intellectual property rights.
This posture was reflected yet again in the Ozimals case. But beyond the
problem posed by lackadaisical enforcement of user agreement terms lies
the fact that the terms themselves are determined exclusively by the developer; the agreement is a fluid instrument, not a constitution.
Linden Lab’s unilateral alteration of the terms of the user agreement
was raised in a recent class action suit challenging its diminution of user
ownership rights.174 The plaintiffs in Evans v. Linden Research, Inc. alleged
that Linden Lab had incrementally substituted the language of ownership
with the language of licensure, which served the purpose of slowly divesting Second Life users of rights that they had been promised, in which they
had invested, and upon which they relied.175 This all led up to the coup de
grâce: the redefinition of Second Life’s supposedly real currency as a licensed possession over which the user now exercised little or no genuine
control.
You acknowledge that Linden dollars are not real currency . . .
and are not redeemable for any sum of money from Linden Lab at
any time. You agree that Linden Lab has the right to manage,
regulate, control, and/or modify the license rights underlying such
Linden dollars as it sees fit and that Linden Lab will have no
liability to you based on its exercise of this right.176
The plaintiffs opposed Linden’s initial motion to dismiss based on a
forum selection clause.177 Relying on the Bragg decision, they argued that
the user agreement to which they had originally agreed was the only relevant instrument, and it was unconscionable.178 The court disagreed, noting
that Linden had changed the language of the provision to mirror a forum
172. Id.
173. Id.
174. See Plaintiffs’ Complaint in Civil Action at ¶ 178, Evans v. Linden Research, Inc., No.
10-1679 (E.D. Pa., Apr. 15, 2010).
175. See generally id. at 9–24 (alleging that Linden Lab had incrementally substituted the
language of ownership with the language of licensure, which served the purpose of slowly divesting Second Life users of rights that they had been promised, in which they had invested, and upon
which they relied).
176. Terms of Service, supra note 95, at § 5.1.
177. Evans v. Linden Research, Inc., 763 F. Supp. 2d 735, 737–38 (E.D. Pa. 2011).
178. Id. at 739.
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selection clause that had been upheld, and each plaintiff had clicked ‘agree’
after the new terms were implemented.179 Although the merits of the other
substantive changes regarding ownership interests have not yet been addressed, the fact that the court upheld one such change suggests that the
final decision will turn on what property rights were in fact conferred rather
than any independently existing right. This is, again, consistent with other
similar claims: the user agreement has indeed been pivotal to the disposition—whether by decision or by settlement—of the legal outcome.
Notably, only a few courts have recognized property rights in virtual
possessions. And the cases giving rise to a judicial recognition of these
rights are not within the United States’ jurisdiction. Two arose in China, a
country where claims are decided without regard to precedent and where an
ongoing promotion of the video game industry has spurred the Public Security Ministry to issue advisory letters to support the protection of virtual
property.180 In one case, a defendant breached security measures that a virtual world provider had implemented on its servers in order to transfer a
mythical virtual sword (worth over $1000 U.S.) from another user’s account to his own. The defendant was found guilty of theft, and the sword
was returned to the plaintiff’s possession.181 The second case involved a
world provider employee who used his administrative powers to modify
security information on some thirty accounts to gain access to and sell both
the accounts and the virtual items possessed by the account holders. Here,
too, the court found the defendant guilty of virtual property theft.182
Other jurisdictions have come to similar results in cases marked by
real-world coercion, such as threats or use of force, to transfer virtual
items.183 It cannot be ignored, however, that real illegal conduct factored
into the conviction and punishment for theft of virtual items in each such
case.184 Chinese courts have specifically found that a user’s right of possession in a virtual item is superior to the developer’s right of possession of the
representative data in cases where the item is deemed to have monetary
value and an independent legal violation has occurred. The same court sys179. Id. at 740–41.
180. Susan H. Abramovitch & David L. Cummings, Virtual Property, Real Law: The Regulation of Property in Video Games, 6 CAN. J. L. & TECH. 73, 78 (2007); Joshua A.T. Fairfield,
Virtual Property, 85 B.U. L. REV. 1047, 1084–85 (2005) (analyzing the benefit the recognition of
virtual property rights could have on the gaming industry in the United States).
181. Dave Gradijan, China Fines Man for Stealing, Selling Virtual Property, CSO SECURITY
& RISK, Apr. 3, 2006, available at http://www.csoonline.com/article/215135/china-fines-man-forstealing-selling-virtual-property.
182. Id.
183. See, e.g., Deng Shasha, Four People Sentenced for Virtual Property Theft, CHINA VIEW,
May 24, 2009, http://news.xinhuanet.com/english/2009-05/24/content_11427265.htm (beating and
coercion); Edwin Feldmann, Netherlands Teen Sentenced for Stealing Virtual Goods, PCWORLD,
(Oct. 23, 2009, 6:50 AM), http://www.pcworld.com/businesscenter/article/152673/netherlands_
teen_sentenced_for_stealing_virtual_goods.html (beating and coercion).
184. See Fairfield, supra note 180, at 1084–85.
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tem, however, has also held that no property right exists if no independent
value exists (excluding “time and effort”) and no other wrongful conduct
has occurred.185 Virtual property rights advocates have correctly pointed
out that American courts vest property rights in non-literal and fleeting
things—the ownership of farm animals, mineral rights, and easements are a
few examples.186 And though Chinese courts have recognized a broad right
to exclude in some cases, the grant of such an absolute right by American
courts would have permanent implications that conflict with the rights of
companies that run the virtual worlds.
For example, in late 2010 Linden Lab summarily shut down the teen
version of Second Life, thereby dispossessing all users of their in-world
possessions.187 Here, users of the closing world were invited to enter the
adult world; Linden lowered the age restriction to sixteen years, and the
remaining under-agers were awarded highly restricted access.188 Moreover,
the transfer of in-world possessions was selective: while many users had to
register new accounts and “start over,” institutions and organizations were
allowed to transfer their investments and resume operations in the adult
world.189 If any right to exclude existed, this was a sure violation.
Similarly, a recent eBay policy change precludes the selling of virtual
items by users of worlds that do not sanction RMT.190 The implication here
is the creation of asymmetric virtual property interests entirely dependent
on the terms of the user agreement and contrary to any supposed right to
transfer. The underlying problem is that to recognize absolute legal title to
virtual property would implicate the corresponding data and obligate the
developer, as guarantor of that property, to maintain the data for the benefit
of the user. The result is to impose on world providers a function not unlike
indentured servitude to the licensors of the services it provides.
These examples illustrate the underlying difficulty inherent in governing virtual property by established legal principles: though there may be
legal similarities between virtual property and real property, other differences are irreconcilable. In the extreme case—the closure of a virtual
world—the discontinuance of service is usually related to the financial and
185. See Wang Qingyun, Court Dismisses Woman’s Claim to Virtual Assets, CHINA DAILY,
Dec. 27, 2010, http://www.chinadaily.com.cn/china/2010-12/27/content_11761509.htm (discussing Chinese court decision that excluded virtual property with no real-world value from the terms
of a divorce settlement).
186. See DURANSKE, supra note 96, at 93.
187. Maria Korolov, Lindens Reverse Course on Teens, HYPERGRID BUS., Sep. 28, 2010, http:/
/www.hypergridbusiness.com/2010/09/lindens-reverse-course-on-teens/.
188. Id.
189. Id.
190. Justin Mann, eBay Bans Sales of Virtual Goods, TECHSPOT, (Jan. 29, 2007, 9:51 PM),
http://www.techspot.com/news/24205-ebay-bans-sales-of-virtual-goods.html; see also Kayser,
supra note 100, at 66 (highlighting an instance where Sony pressured eBay to remove auctions
involving EverQuest virtual items).
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technological capacity of the world provider.191 The right to terminate service is commonly reserved by the user agreement and, moreover, is a reasonable response to economic or technological impotence.192
On the other hand, if Moore’s Law193 holds true and the computing
capacity continues to double at least every two years, developers will write
software that utilizes new technologies, which will on occasion require the
complete redevelopment of the software platform. Even if it is assumed that
the developer will continue to provide only updated versions of an existing
virtual world, completely rewritten code raises compatibility issues. In the
case where users contribute their own code, not every contribution will necessarily translate to newer versions of the software.194 If such an event were
to occur, the developer could not reasonably be required to accommodate
every element of user-contributed code. Such an understanding is common:
with the Windows operating system, for instance, the responsibility to
maintain compatibility is attributed to the independent developers.195 But in
order to uphold absolute property rights the developer would be required to
maintain compatibility for all user-contributed content. If it did not, it could
potentially face claims arising from the widespread incompatibility issues
that would invariably result from technological evolution.
Striking a balance between the creators of virtual worlds and the users
populating these worlds is, and has been, a dubious endeavor. To give to
one necessarily means to take from another; the law has yet to formally
191. See The End is Virtually Nigh, THE ECONOMIST, Dec. 8, 2005, at 14, available at http://
www.economist.com/node/5244129 (discussing the closure of a virtual world due to a failure to
“achieve critical mass,” resulting in economic unviability).
192. See, e.g., Terms of Service, supra note 95, at §§ 4.2, 4.5 (asserting that Second Life is a
service and is provided at the discretion of Linden Lab, who is not liable for the temporary or
permanent interruption of that service); World of Warcraft Terms of Use, supra note 170 (Blizzard
may, “change, modify, suspend, or discontinue any aspect of the Game at any time . . . .”).
193. Gordon E. Moore, Cramming More Components onto Integrated Circuits, 38 ELECTRONICS, no. 8, Apr. 19, 1965, at 1, 4, available at http://download.intel.com/museum/Moores_Law/
Articles-Press_Releases/Gordon_Moore_1965_Article.pdf. Moore’s Law is an observation about
computer hardware production which states that the number of transistors that a manufacturer can
incorporate into one integrated circuit doubles every two years. This correlates with CPU performance ratings, which have followed a linear development path fairly consistently since Moore initially published his article in 1965. Michael Kanellos, Moore’s Law to Roll On for Another
Decade, CNET NEWS (Feb. 10, 2003, 2:27 PM), http://news.cnet.com/2100-1001-984051.html.
194. Compatibility can be simplified as follows: the Second Life software platform allows
users to create objects using different types of “building blocks.” In a simple format, the blocks
might be limited to squares, circles, and triangles. Redeveloped software, however, may replace
triangle blocks with pentagonal blocks. Thus every user contribution that uses the triangle blocks,
at the very least, will not “look” right because the pentagonal blocks will appear where a triangle
block should. The reality is, however, that the number and type of blocks is very large, and many
of the “shapes” available depend on the technology used. If older features are not reproduced in
newer technologies, or if they are completely redesigned, then legacy content that uses features
absent in new software will, like the contributions using triangles in the example, not work
correctly.
195. This comparison was expressly recognized in the Evans complaint. See Plaintiff’s Complaint in Civil Action, supra note 174, at 22.
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determine what rights prevail. However, the lay of the legal landscape, as it
were, decidedly favors the purveyors of virtual world services. Due to both
the creative and developmental necessity for developers to maintain control
over their creations and the predominantly game-like qualities of all virtual
worlds, reason dictates the same result. Pending the resolution of the Evans
case, it appears that one of two standards will emerge. Either a virtual world
provider will be required to uphold the rights it purports to grant, or the
unilateral modification of a user agreement will be permitted to the extent
that the Evans facts do not constitute information superhighway robbery.
Regardless, the user agreement as drafted by the world provider will continue to shape the nature of user rights. Or, in other words, even in virtual
worlds creationist maxims hold true: one hand giveth, the other taketh
away.
IV. WHAT ECONOMY, PRECISELY?
A beginning is the time for taking the most delicate care that the
balances are correct.
From “Manual of Muad’Dib” by the Princess Irulan196
Despite the apparent ubiquity of enforceable user agreements as a viable means to resolve user claims, the argument remains that these agreements essentially serve to undermine rights that exist simply by the virtue
of virtual presence. Arguments based on rights have ranged from strictly inworld matters, such as the right to avatar privacy,197 to trans-world matters,
such as a personal right to not be exiled from a virtual world.198 Though
users do, in fact, invest large amounts of money and time in virtual worlds,
the ability to do so is hinged on continued access to them. And thus it is the
providers of virtual world services that persist to define the limits of these
rights—both in code and in contract.
The developers that avail themselves of the benefit of specific game
objectives and fantasy tropes can readily address problems through user
agreements due to highly congruent user interests in the game atmosphere.
On the other hand, social- and economy-driven worlds face the additional
complication created by the widespread introduction of very real financial
ilk. Although virtual economies seemingly mirror real-world economies,
the facial similarities are on the decline. The most prolific example—the
economy of Second Life—has experienced artificial restraints, including
the termination of in-world banking and gambling institutions, following
196. FRANK HERBERT, DUNE 3 (1999).
197. See, e.g., Palyan, supra note 100.
198. See, e.g., Kayser, supra note 100, at 63. The author couches the argument in an analog to
‘American values’ stemming from the Declaration of Independence and the Constitution, asserting
that, “[t]he players in these virtual worlds are not merely playing but living in the virtual space,
[thus] exclusion from the virtual world amounts to something between extradition and execution.”
Id.
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large-scale scams, regulatory enforcement complications, and the woes of
Linden liability for a largely unregulated market.199 Moreover, the recent
overhaul of the language defining the lifeblood of the market—the virtual
currency—as a license to use rather than a form of real currency signifies
Linden’s desire to take a step away from the real thing and a step closer to
make-believe.
The cases discussed in the preceding section are not merely a sample
of past and present claims, but represent a substantial portion of the existing
body of law. For all interested parties—courts, developers, and users—the
economic impact of the recognition of virtual rights is a primary concern.
Although the voluntary adoption of absolute virtual rights—whether property or personal—by a virtual world developer is not completely out of the
question, the common provisions found in user agreements limiting the legal obligations owed to users suggests it is unlikely. Thus it is through the
vehicle of economic interests that the creation of such rights is apt to occur;
and they are likely to be imposed rather than adopted.
The legal recognition of an individual virtual property right depends
on the competing developer and user interests. But whether or not a specific
user’s right to a virtual chattel may be found superior to that of the developer, the blanket adoption of that right for all users and all chattels must
also weigh in favor of the virtual community. Put another way, the imposition of a “right” on a virtual world must reflect the norms of that world and
protect the users’ needs and the developer’s ability to address those
needs.200 This section provides a brief look at the participation and the subject matter of the virtual economies—mainly that which is maintained in
Second Life—focusing specifically on the importance of what would likely
be the first rights granted: virtual economic and property rights.
A. Scope and Significance
The first, and arguably most important, point is to again recognize that
sanctioned real-world markets for virtual goods are not ubiquitous. The
market, on the other hand, is doubtlessly thriving: users continue to pay
subscription fees to participate, and they continue to pay one another for
whatever item or add-on that allows them to participate in a satisfying manner.201 Naturally, the impetus for world owners to actively participate in the
199. Robin Sidel, Cheer Up, Ben: Your Economy Isn’t as Bad as This One: In the MakeBelieve World of ‘Second Life,’ Banks are Really Collapsing, WALL ST. J., Jan. 23, 2008, at A1;
Adam Reuters, Linden Lab Outlaws Second Life Gambling, REUTERS, July 26, 2007 (on file with
author) (discussing Linden’s restriction on “games of chance” in Second Life amidst legal ambiguity of online gambling).
200. See LASTOWKA, supra note 5, at 182–83 (discussing the importance of the freedom to
construct rules of play that correspond to the users’ notion of what falls within the “spirit of the
game”).
201. F. Gregory Lastowka & Dan Hunter, The Laws Of The Virtual Worlds, 92 CAL. L. REV.
1, 8 (2004).
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world economy is a desire to share in the profits. Subscription-based platforms provide a steady income to cover the operating and expansion
costs—more servers, increased storage capacity, staffing—attendant to any
growth in a world’s popularity.
Taxing in-world exchanges can also serve as a source of primary or
supplementary revenue.202 Blizzard Software recently implemented one
such economic model. Shortly after the May 2012 release of Diablo III—
the reigning sovereign of the hack-and-slash game universe—the gaming
company unveiled the Real-Money Auction House (“RMAH”), which facilitated auction-style virtual item exchanges between players through the
Diablo III client software.203 Although in many ways Blizzard had “attempted the equivalent of drug legalization in the MMO market,” the company successfully landed a piece of a substantial (and previously untapped
in any official capacity) marketplace.204 Successful auction sales are currently subject to a one dollar fee, and an additional fifteen percent transfer
tax is applied when a user withdraws auction proceeds from his or her user
account.205 As is the case with its real-world counterpart, imposing a steep
sales tax may eventually raise dissent among users, yet the initial user response seems to have centered on whether the RMAH has affected the integrity of the game.206 In the end, however, the primary focus of the
developer must be to maintain user interest regardless of how it chooses to
maintain solvency. Without the user base there is no economy.
The extent to which the real-world initially took notice of virtual economies is evident in some of the corporate responses to the Second Life
phenomenon. Coldwell Banker, a real estate firm employing over 120,000
persons in forty-five countries, entered the virtual real estate market in
2007.207 The firm purchased large tracts of land in Second Life, subdivided
its holdings into 520 smaller parcels, and contracted the construction of 520
virtual homes—half of which it would sell outright for twenty dollars
apiece, the other half of which it planned to rent.208
Virtual development companies have thrived off this sort of corporate
interest, charging anywhere from $15,000 to several hundreds of thousands
202. Between the time of the initial writing of this article and its subsequent publication,
Blizzard Software implemented one such economic model. See discussion infra notes 204–07.
203. Blizzard Entertainment, Real-Money Auction House Now Available in the Americas,
DIABLO III (June 12, 2012, 1:40 PM), http://us.battle.net/d3/en/blog/6360586/.
204. Paul Tassi, Why Diablo 3’s Real Money Auction House Should Not Be Your Summer Job,
FORBES, June 13, 2012, available at http://www.forbes.com/sites/insertcoin/2012/06/13/whydiablo-3s-real-money-auction-house-should-not-be-your-summer-job-2/.
205. Auction House, BLIZZARD ENTERTAINMENT, http://us.battle.net/d3/en/game/guide/items/
auction-house (last visited Oct. 21, 2012).
206. See, e.g., Tassi, supra note 204.
207. David Kirkpatrick, Coldwell Banker’s Second Life, CNNMONEY, Mar. 23, 2007, http://
money.cnn.com/2007/03/22/technology/fastforward_secondlife.fortune/index.htm (last visited
Apr. 3, 2013).
208. Id.
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of dollars to establish a unique corporate presence in a virtual world.209
Indeed, big names including Coca Cola, American Apparel, and Intel have
spent big money putting their brands in front of the virtual eyes of avatarconsumers.210
Although this corporate interest and the notion of virtual property
ownership is most prevalent in Second Life, such use and acquisition of
virtual property occurs in many virtual worlds. In November of 2010, a
record was set for highest purchase price for a piece of virtual real estate.
The property, consisting of “eight bio-domes, space docks, a stadium, club
and mall,” exists in Entropia Universe; the sticker price: $335,000.211 At the
time of the purchase, the seller was earning approximately $200,000 yearly
from the sale of virtual goods, rental space leased to in-world retailers, and
royalties from services offered within the property.212 At the other end of
the economic spectrum, there are myriad items for sale costing pennies or
less.
B. How Popular, Really?
In 2007 analysts predicted that “[b]y the end of 2011, eighty percent of
active Internet users (and Fortune 500 enterprises) will have a ‘second life’,
but not necessarily in Second Life.”213 The number of users registered for
one of the myriad virtual worlds available broke the one-billion mark in
2010.214 Second Life and World of Warcraft recently reported user estimates of fourteen and eleven million, respectively.215 A majority of the
popular U.S.-based online multiplayer games—meaning those that are not
predominately social platforms—employ a subscription revenue model.216
Subscription data provides a fairly accurate estimate of the active user base
209. See Daniel Terdiman, ‘Second Life’ Dreams of Electric Sheep, CNET NEWS, (Apr. 3,
2006, 4:00 AM), http://news.cnet.com/Second-Life-dreams-of-Electric-Sheep/2100-1043_36056759.html; Frank Rose, How Madison Avenue Is Wasting Millions on a Deserted Second Life,
15 WIRED MAG., no. 8, July 24, 2007, available at http://www.wired.com/techbiz/media/magazine/15-08/ff_sheep?currentPage=all.
210. See Rose, supra note 209.
211. Chiang, supra note 84.
212. Id.
213. Press Release, Gartner, Inc., Gartner Says 80 Percent of Active Internet Users Will Have
A “Second Life” in the Virtual World by the End of 2011 (Apr. 24, 2007), http://www.gartner.
com/it/page.jsp?id=503861 [hereinafter Gartner Press Release]. The company identified five laws
that companies entering virtual worlds should recognize: first, that virtual worlds are not simply
games but not yet parallel universes; second, that “[b]ehind every avatar is a real person”; third,
that relevance and contribution is valuable; fourth, that there is a foreseeable “downside”; and
fifth, that “[t]his is a long haul.” Id.
214. Virtual World Registered Accounts Breakthrough 1bn, KZERO, available at http://www.
kzero.co.uk/blog/virtual-world-registered-accounts-breakthrough-1bn.
215. WARREN & PALMER, supra note 167, at 2.
216. See U.S. MMORPG Companies Need to Offer More Free Games - Not Subscription
Models - to Grow Market, REUTERS, July 22, 2008, available at http://www.reuters.com/article/2008/07/22/idUS177521+22-Jul-2008+PRN20080722.
R
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simply because it connotes a desire significant to justify the assumption of a
cost. Mere registration data, on the other hand, can be misleading. In a
virtual world that costs users nothing to participate, a user may own multiple accounts and accounts may go dormant as users lose interest; even accounts that are rarely used are counted in the total “population.” This
observation is consistent with the fact that virtual worlds understood to be
nothing more than games—regardless of any sense of ownership over inworld possessions—are far more popular than their social-oriented
counterparts.217
Second Life provides a fine example. To determine the “population” of
the world, Linden counts each individual avatar whether it is actually used,
whether it is the sole avatar registered by a single user, or whether it is one
of many. At times it has been estimated that as much of eighty-five percent
of the registered avatars are entirely unused.218 During the first quarter of
2013 the total number of registered users totaled 33,326,134.219 Yet statistical analysis conducted using data released by Linden Lab warrants an even
more pessimistic conclusion. In 2004—a time when Second Life was relatively unknown, there were approximately 25,000 users registered for the
service and between six and nine thousand users could be found online at
any given time.220 Two years later, after the service had gained more popularity, user registration had increased to 1.1 million, but user concurrency
rates had only jumped to between eleven and twelve thousand.221 In 2013,
the concurrency rate reached forty-five to forty-nine thousand users.222 The
ratio of user concurrency to user registration, thus, dropped from thirty-six
percent to one percent to a little more than one tenth of one percent in 2004,
2006, and 2013, respectively. Although the rate of user subscription—a prerequisite to benefits such as land ownership and the creation of any truly
custom content223—is not published by Linden Lab, even if the concurrent
user rates reflected the subscription user rates, the number of paying Second
217. See Gartner Press Release, supra note 213.
218. Rose, supra note 209.
219. Daniel Voyager, Second Life Statistics 2013 Spring Update, DANIEL VOYAGER’S BLOG,
(Apr. 2, 2013), http://danielvoyager.wordpress.com/2013/04/02/second-life-statistics-2013-springupdate/ (last visited Aug. 25, 2013).
220. Is Second Life Successful (Mar. 25, 2007) (unpublished report) (on file with author).
Until the beginning of 2008, Linden Lab actively released usage metrics for public use. Skepticism over the viability and popularity of Second Life, however, has contributed to a more closeddoor approach. Linden has ceased to publish this kind of raw data and no longer hosts past
databases on its website, although the company does periodically issue press releases regarding
select data trends.
221. Id.
222. Voyager, supra note 219.
223. See Premium Membership, LINDEN LAB, http://secondlife.com/premium/ (last visited
Aug. 25, 2013). Custom content constitutes user-created code that is written outside of the world
platform or designed in “premium-only sandboxes” and implemented in the system, as opposed to
that which is created using the basic in-world design software. It stands to reason that such content, which ranges from complex objects d’art to the aforementioned SexGen bed, should require
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Life users is falling far out of proportion to the casual, inconsistent users
that make up the bulk of the world’s supposed market participants.
The potential for economic success that Linden Lab has insistently
suggested to the real-world has yet to be realized. During January of 2010,
the number of users whose online accounts ended with a positive income
flow topped 70,000.224 The caveat here is that any positive account value
was counted for purposes of this figure, including those users who received
free Linden dollars at one of the game’s most popular locations, Money
Island.225 Of those 70,000 users who earned money in the world, only
1.64% made the equivalent of a minimum wage (based on a $7.25 hourly
standard).226 At that time there were around eighteen million registered
users;227 yet in March of that year only 1,083,856 unique users had used the
service, 6.36% of whom earned at least one Linden dollar during that thirtyone-day period.228 Assuming these figures remained relatively consistent
during the first quarter of 2010, this suggest that only one-tenth of one percent of the March 2010 users (1.64% of 6.36%) who earned anything were
actually pulling in an amount equal to minimum wage.
During the same quarter (January–April, 2010), there were approximately 803,000 users that logged in more than once monthly and 496,000
accounts that participated in at least one transaction.229 Market statistics
issued by Linden Lab reveal a dying economy: while March 2007 alone
saw over $7 million U.S. exchange virtual hands, the entire fourth quarter
of 2010 measured in at $3.5 million U.S.—an average of $1.17 million each
month.230 During this time, the ratio of economic growth to total population
growth reduced by a factor of over twenty.231
This data is not presented to show that virtual economies are entirely
negligible, or that participants in these economies do not need or desire any
form of legal protection. Rather, it highlights the tendency of virtual economies to gravitate toward the focus of the game, whether or not the game is a
product of design or a product of imagination. As one L.A. Times writer
additional fees as the presentation and maintenance of these items inside the virtual world inherently requires more computing power and data storage space.
224. The Economic Truth of Earning Income in Second Life (Mar. 9, 2010) (unpublished
report) (on file with author).
225. Id.
226. Id.
227. Daniel Voyager, Second Life Metrics, DANIEL VOYAGER’S BLOG, http://danielvoyager.
wordpress.com/sl-metrics/ (last visited Aug. 25, 2013). Note that “registered user” does not necessarily mean unique user.
228. The Economic Truth of Earning Income in Second Life, supra note 224.
229. Linden, The Second Life Economy in Q4 2010, supra note 83. These figures represent
U.S. dollar amounts.
230. Id.
231. Second Life Metrics, supra note 227. There were five million registered accounts in
March 2007 and eighteen million registered accounts in February 2010. The economy-population
ratio at those times was 1.4 and 0.065, respectively.
R
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observed, “a three-dimensional online society where publicity is cheap and
the demographic is edgy and certainly computer-savvy . . . should be a
marketer’s paradise.”232 But when companies found that the Second Life
“fantasyland” was a market of and for itself, and exclusive of “real-world”
interjection—users held protests, wrote angry letters, and began to ignore
the corporations they saw as intruders into their space.233 One of the more
notable events was the disruption of an in-world CNET interview with the
land baroness Anshe Chung, in which a few technically inclined users assaulted the interview participants with flying phalluses.234
Of course, one may enter the world to do real-life things such as shop
for knick-knacks or design a widget to sell to other users, but unless it
panders to a common Second Life pastime, it likely won’t be of much interest to anybody since its only real use is confined to the virtual world.235
Although the half-million economic participants seem to suggest otherwise,
this figure must be tempered by the fact that, in Second Life, appearances
are (almost) everything.236 Chic and risqué clothing, beds pre-programmed
with graphic animations, the virtual “parts” that are used on the beds, and
any other gizmo that pairs well with the most popular in-world locations
(virtual brothels and strip clubs)237 are all Second Life favorites. Although
perhaps not the most flattering depiction, Second Life appears to be a
twenty-first century Pinocchio. It is a platform that wants to do that which it
cannot: lose the wood and get real.
The scant number of users either purchasing subscriptions or generating income, the withdrawal of corporate investment, and the standard user
practice of conducting low-value transactions suggests that the interests of
the large majority of the Second Life users is not one that will necessarily
be served by the creation of a virtual property right independent of the user
232. Alana Semuels, Virtual Marketers have Second Thoughts about Second Life, L.A. TIMES,
July 14, 2007, http://articles.latimes.com/2007/jul/14/business/fi-secondlife14.
233. See, e.g., id. In response to an article concerning a Coca-Cola promotion launched in
Second Life, one user remarked, “Kill me if I understand the whole SL marketing projects. They
all look pretty much lame to me.” Mack Collier, Coke Gets a Second Life, THE VIRAL GARDEN
(Apr. 20, 2007), available at http://moblogsmoproblems.blogspot.com/2007/04/coke-gets-secondlife.html (comment below blog post).
234. Stephen Hutcheon, Second Life Miscreants Stage Members-only Attack, SYDNEY MORNING HERALD, Dec. 21, 2006, http://wwwv.smh.com.au/news/web/good-grief-bad-vibes/2006/12/
21/1166290662836.html.
235. See Gartner Press Release, supra note 213.
236. See generally Lisbeth Klastrup & Susana Tosca, “Because It Just Looks Cool!”: Fashion
as Character Performance: The Case of WoW, 1 J. VIRTUAL WORLDS RES., no. 3, Feb. 2009, at 3,
4, https://journals.tdl.org/jvwr/article/view/305/427 (concluding the acquisition of items to change
the avatar appearance—regardless of any intrinsic usefulness—is a highly important endeavor
common to all virtual worlds).
237. Semuels, supra note 232; see also Rose, supra note 209 (“On a random day in June, the
most popular location was Money Island (where Linden dollars, the official currency, are given
away gratis), with a score of 136,000. Sexy Beach, one of several regions that offer virtual sex
shops, dancing, and no-strings hookups, came in at 133,000. The Sears store on IBM’s Innovation
Island had a traffic score of 281; Coke’s Virtual Thirst pavilion, a mere 27.”).
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agreement. And even though the benefit of imposing the right might arguably outweigh the cost of doing so, the fact remains that this would necessarily create a series of duties incumbent on both the users and the developer.
The result is that both the “right to play” and the “right to design” would be
restricted. The less intrusive alternative, as discussed in the previous section, is to allow Linden Lab to adapt a user agreement to suit its users’
needs. The same courts that would otherwise be required to vindicate independent virtual property rights claims could instead focus on ensuring that
the contracts entered into by users and developers are properly observed.
This would afford virtual worlds the freedom to evolve and ensure that the
users investing in virtual worlds continue to play—or are, at least, free to do
so if they choose.
V. EAST CODE, WEST CODE
In the most carefully constructed experiment under the most carefully controlled conditions, the organism will do whatever it damn
well pleases.
‘Some Wag’238
Despite a multitude of claims spanning a variety of legal bases, the fact
that few cases in American jurisdictions have actually moved beyond the
preliminary stages of litigation is revealing. Indeed, litigious gamers are in
some respects a marginalized class armed with perplexing claims.239 But
the online multiplayer gaming industry is becoming increasingly profitable.
In particular, the number of users and the popularity of virtual worlds continue to increase, thus demanding more judicial attention.240 Yet the natural
and likely tendencies of most users—especially those playing for the sake
of play—are directly at odds with the notion of real-world law governing
virtual world behavior. Though this does not dissolve the responsibility incumbent on game developers to protect the rights it grants to users (especially when those rights have real-world implications such as is the case
with virtual economies), it mitigates both virtual world law and virtual
rights advocates’ sense of urgency.
User agreements, moreover, have been demonstrated as an effective
means to govern the use of virtual worlds, though some doubt has been
raised as to their viability in cases of long-term user-developer relationships.241 Yet the unstable, fickle nature of these worlds—at once being cre238. Morningstar & Farmer, supra note 13, at 12. The speaker of this quote, “Some Wag,” has
a moniker that I did not invent. See id.
239. See Kayser, supra note 100, at 61–62.
240. See Strategy Analytics: Global MMORPG Market to Hit $ 8 Billion in 2010; Blizzard,
Shanda and Netease Lead the Market, BUS. WIRE, Aug. 10, 2010, available at http://www.businesswire.com/news/home/20100810006504/en/Strategy-Analytics-Global-MMORPG-Market-hit8.
241. See Castranova, supra note 100, at 76–78.
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ated and recreated by both users and developers—and the equally unstable
and fickle nature of the technology upon which these worlds depend begs
the question of whether this is a pressing concern. The malleability of these
agreements reflects the experimental nature of virtual worlds and the frivolity with which many users treat their virtual identities. Unlike the realworld, in a virtual world there is such a thing as no-strings-attached; nothing is necessarily permanent; and in-world personal catastrophe, social crisis, or fake-financial ruin may be remedied as easily as clicking restart.
“Long-term” does not quite carry the same meaning in virtual reality.
Contract malleability has, in a sense, allowed developers to make unilateral decisions regarding world governance such as Linden Lab’s act of
reigning in its promise of virtual property rights—a decision made at least
in part due to liability and enforcement concerns. Yet it also indicates incapacity to provide what seems to have been intended: an environment that is
virtually real. Whether this realization came pursuant to experience dictating that virtually real is not as simple as is it appears or the emergent necessity of quasi-governmental involvement, the bottom line is that the service
providers have demonstrated that they simply do not want to go there. Corporate use of these worlds, too, is being “outsourced” as both businesses
and advertisers are creating stand-alone platforms to suit their particular
needs.242 A core motivation to do so is not very different from one that
drives more traditional virtual world developers: control.243 Control and, of
course, unmitigated access to the real-world consumers who apparently do
not frequent social virtual worlds enough to maintain corporate interest.
Beyond that which has already been discussed, what can be gleaned
from the social, fiscal, and corporate trends in virtual world use does not
inspire the image of an explosive phenomenon with far-reaching real-world
implications which command a need for external legal implements. It is not
the Life 2.0 imagined in science fiction movies and futurist fiction novels.
Instead, the result is more a reconsideration of what it is to play—at least
one researcher has suggested parallels to common children’s games, dressup, and house.244 To journalist Julian Dibbel, “[t]he future of play has never
looked so open-ended, protean, and complex—or, to put in another way,
more like Second Life.”245
Understood this way, it only seems natural to afford the users and creators of these virtual worlds an effective and sufficiently flexible means to
regulate behavior within virtual worlds. To borrow the language of Profes242. Aili McConnon & Reena Jana, Beyond Second Life: Companies Thinking Twice About
the Popular Virtual World are Finding More Security and Flexibility in Alternatives, BUSINESSWEEK, June 11, 2011, available at http://www.businessweek.com/magazine/content/07_24/
b4038417.htm.
243. Id.
244. See Klastrup & Tosca, supra note 236, at 15.
245. Julian Dibbell, Serious Games, MIT TECH. REV., Dec. 21, 2010, at 74, 76, available at
http://www.technologyreview.com/review/422131/serious-games/.
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sor Lessig: West Coast Code, the rules provided by developers, will always
be more capable in this capacity than East Coast Code, the rules prescribed
by Congress: “it’s faster, cheaper and more reliable.”246 To that end, Professor Lessig’s comments on code in relation to the question of its “governmental capacity” are instructive:
Rather than condemn, the trick is to critique. We must develop
the same critical sensibilities for code that we have for law. We
must ask about West Coast Code what we ask about East Coast
Code: Whose interests does it serve and at what price? Is it consistent with values we believe fundamental? Does it protect certain interests (copyright in particular) more than our tradition, and
our Constitution, would?247
If the virtual worlds are limited by the intrusion of real-world law, one
of the fundamental tenets of virtual worlds—play—degenerates. Absent
this element, the allure itself might lose its luster, the users may abandon
their collections of now virtually real (limited-license) belongings, and the
economies will collapse. Oddly, the “rights” demanded by many entrants
and enthusiasts are under no circumstances unassailable, whether governed
by contract or by law. Yet it seems the mechanism by which these rights
apparently should be protected—judicial and congressional recognition—
will, in the end, undermine the purpose.
For the time being, the ways in which in-world behavior affects realworld interests must abide the real-world laws applicable to those interests.
Indeed, existing law is more than competent to address such concerns; so
much has been demonstrated in the courts already. And so long as the impetus for intervention is contingent on a decision by a virtual world developer
(a group of software programmers) to give more or take more, it is not
generally the duty of courts or Congress to introduce extra-contractual duties. Admittedly, virtual worlds are, and virtual worlds will assume, a place
of importance in modern society as their social and commercial use becomes more widespread. Today, however, the occasion has not yet arisen to
corral users and developers of these worlds into the framework of a fullfledged and dedicated legal regime. Perhaps when one can answer in the
negative the question of whether it’s a game any longer, a bona fide need
for virtual law will appear. But for the time being, a game it necessarily
remains.
246. See Lessig, supra note 110.
247. Id.
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